Radancy Standard Terms & Conditions
THESE RADANCY STANDARD TERMS & CONDITIONS (THE “TERMS”) GOVERN THE PROVISION OF SERVICES (AS DEFINED BELOW), AND CLIENT’S USE THEREOF, AS SET FORTH IN ONE OR MORE ORDERING DOCUMENTS (EACH SUCH DOCUMENT, AN “ORDER FORM”) EXECUTED BY TMP WORLDWIDE ADVERTISING & COMMUNICATIONS, LLC. DBA RADANCY (“RADANCY”) AND THE ENTITY PLACING AN ORDER FOR SERVICES (“CLIENT”) (RADANCY AND CLIENT MAY EACH BE REFERRED TO AS A “PARTY” OR COLLECTIVELY AS THE “PARTIES”). RADANCY’S PROVISION OF THE SERVICES ORDERED PURSUANT TO THE ORDER FORM ARE SUBJECT TO SUPPLEMENTAL TERMS AND CONDITIONS AS SET FORTH IN EXHIBIT A HERETO (THE “SUPPLEMENTAL TERMS”), WHICH ARE HEREBY INCORPORATED BY REFERENCE. TOGETHER, EACH ORDER FORM, THESE TERMS AND THE SUPPLEMENTAL TERMS CONSTITUTE THE “AGREEMENT.” BY EXECUTING AN ORDER FORM, CLIENT AGREES TO THE AGREEMENT. THE INDIVIDUAL SIGNING THE ORDER FORM ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH CORPORATION OR OTHER LEGAL ENTITY TO THE AGREEMENT.
1. Scope of Agreement. These Terms govern Radancy’s provision of, and Client’s access to and use of, certain Radancy software (“Software”) and related services made available on a hosted, “software-as-a-service” basis through Radancy’s proprietary talent acquisition platform, (the “Radancy Platform”) (together, “Hosted Software Services”), and/or certain professional, consulting or other non-hosted services (“Other Services” and together with the Hosted Software Services, “Services”), in each case, as expressly set forth in the Order Form between the Parties. The Order Form will include, at a minimum: (a) the term of such Order Form; (b) a description of the Services to be provided by Radancy under the Order Form and any Deliverables (as defined below); and (c) the associated fees and payment terms. Each Order Form, upon being duly executed by the Parties, will be deemed incorporated into these Terms by reference and made an integral part of the Agreement governing Client’s access to and use of the Services identified in such executed Order Form. In order to be binding, the Order Form must be signed by both Parties. Each Order Form entered into by the Parties results in a separate agreement between the Parties.
2. Hosted Software Services and Other Services.
a. Hosted Software Services. Subject to the terms and conditions of the Agreement, if the Order Form relates to Hosted Software Services, Radancy hereby grants to Client a non-exclusive, non-transferable (except as permitted under Section 12(f)), non-sublicensable right, solely during the Order Form Term (as defined below) to access and use the those Hosted Software Services expressly set forth in such Order Form. Radancy reserves the right, at any time and with or without notice to Client, to modify, update, amend and revise the Hosted Software Services (including without limitation by making available new software or software versions that modify, update, amend, supplement, revise or replace the Software originally made available via the Hosted Software Services), and to temporarily suspend, limit or restrict access thereto, as necessary for such purposes. No such modification, update, amendment, supplement, revision or replacement shall materially reduce the functionality of the Hosted Software Services provided pursuant to the Order Form.
b. Other Services. Subject to the terms and conditions of the Agreement, if the Order Form relates to Other Services, Radancy will perform for Client those Other Services set forth in such Order Form solely during the Order Form Term.
c. Subcontractors. Client agrees that Radancy may engage subcontractors to perform any of its obligations under the Agreement. Any acts and or omissions of any such subcontractors pursuant to the Agreement that, if such act or omission had been taken or not taken by Radancy would have resulted in a material breach of the Agreement, shall be deemed a material breach of the Agreement by Radancy.
d. Affiliates. Any Affiliate of Radancy will have the right to perform any of Radancy’s obligations under the Agreement, including providing any Services set forth in the Order Form. To the extent any Radancy Affiliate performs any such obligations, all references to Radancy in the Agreement are deemed to be references to such Affiliate. Any acts and or omissions of any such Affiliate pursuant to the Agreement that, if such act or omission had been taken or not taken by Radancy would have resulted in a material breach of the Agreement, shall be deemed a material breach of the Agreement by Radancy. The term “Affiliate” means any company, corporation or other business entity controlled by, in control of or under common control with a Party hereto, and for purposes of this definition “control” shall mean the ownership, legally or beneficially, directly, or indirectly, of fifty percent (50%) or more of the voting shares or membership interest of any corporation or other business entity.
3. Client’s Rights and Obligations.
a. Client Materials.
i. As between Client and Radancy, Client owns all data, including without limitation Personal Data (as defined in the Data Protection Addendum), submitted to Radancy by or on behalf of Client in connection with the Services (collectively, “Client Data”) and all other information or materials submitted by or on behalf of Client in connection with the Services, including without limitation, all job descriptions, and accompanying artwork, text, logos, trademarks, service marks, trade names, (together with Client Data, the “Client Materials”). Client shall cooperate with Radancy to provide Radancy with timely access to all Client Materials reasonably necessary for Radancy to provide the Services set forth in the Order Form, including (as applicable) access to its Applicant Tracking System (“ATS”) or other source of job listings, which may include provision of Client links, usernames, passwords or other information reasonably necessary to enable Radancy to access Client’s ATS or other source of job listings for the purpose of utilizing third-party API’s. To the extent Radancy integrates Client’s Career Site with Client’s ATS via an API, the Parties acknowledge and agree to Radancy’s “API Use Policy,” located at www.radancy.com/API-Use-Policy.
ii. Client hereby grants to Radancy and its Affiliates a worldwide, non-exclusive, non-transferable (except as permitted under Section 12(f)), non-sublicensable (except to Radancy’s and its Affiliates’ subcontractors solely for the purposes of providing the Services) license to reproduce, distribute, display and perform (whether publicly or otherwise), modify, prepare derivative works of, host, transmit, and otherwise use Client Materials, as reasonably necessary to make available to Client the Services in accordance with the Agreement. Client shall remain solely responsible for all Client Materials provided to Radancy. All Client Materials will be returned to Client or destroyed, at Client’s direction, upon termination of the Agreement.
b. Aggregation. Notwithstanding the foregoing or anything in the Agreement to the contrary, Client acknowledges and agrees that Radancy and/or its Affiliates may anonymize and aggregate Client Data and Derived Data (as defined below) made available to Radancy and/or its Affiliates through Client’s access to or use of the Services (collectively, “Aggregated Data”) and may use the Aggregated Data to analyze, improve, support, provide and operate the Services or any other software or services offered or made available by Radancy and/or its Affiliates during and after the Term, provided that at all times such Aggregated Data does not identify Client or any individual user as the source of the Aggregated Data.
i. Client shall access and use the Services solely in compliance with the Agreement (including the applicable Supplemental Terms and Order Form) and all Applicable Law. “Applicable Law” means all laws, rules, regulations, statutes, executive orders, directives, decrees, guidance or other official releases of or by any governmental authority or any regulatory or self-regulatory organization, whether foreign or domestic, federal, state, provincial or local, including, without limitation, security and data protection and employment discrimination laws.
ii. Client shall not do, and shall not allow any third party to do, any of the following: (i) reverse-engineer, decompile, disassemble, modify, create derivative works, or otherwise seek to obtain source code of any Services (including the Software associated therewith), except where such restriction is expressly prohibited by Applicable Law; (ii) copy, reproduce, modify, create derivative works of, redistribute, “rip,” record, transfer, perform, frame, link to or display to the public, broadcast, or make available to the public, or any other use which is not expressly permitted under the Agreement or Applicable Law, or which otherwise infringes intellectual property rights; (iii) sell, rent, sublicense, lease or otherwise monetize or commercialize, or otherwise allow any third party not authorized under the Agreement to access or use the Services (including the Software associated therewith); (iv) use the Services for purposes of: (A) benchmarking or competitive analysis of the Services; (B) developing, using, or providing a competing software product or service; or (C) any other purpose that is to Radancy’s detriment or commercial disadvantage; (v) circumvent any technology used by Radancy, its licensors, or any third party; (vi) remove or alter any copyright, trademark, or other intellectual property notices (including for the purpose of disguising or changing any indications of ownership or source); (vii) propagate any virus, worms or Trojan horses, or any programming routine that may damage the Services (including the Software associated therewith) or any Radancy system or data; (viii) delete or alter any part of the Services except as expressly permitted under the Agreement; or (ix) use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from the Services.
4. Term and Termination.
a. Term. These Terms take effect on the Effective Date as that term is defined in the Order Form and will remain in effect until the Order Form has expired or been terminated (the “Term”). If the Effective Date is not set forth in the Order From, the Effective Date shall be the date on which Client signs the first Order Form.
b. Term of Order Form. The initial term of the Order Form will be set forth in the Order Form (the “Initial Term”). Except as set forth in the Order Form, the Initial Term will automatically renew for additional periods equal in length to the Initial Term (each, a “Renewal Term” and together with the Initial Term, the “Order Form Term”), unless either Party provides notice of non-renewal at least thirty (30) days prior to commencement of the next renewal term.
c. Renewal Terms. Except as otherwise provided in the Order Form, Radancy shall notify Client in writing of any pricing changes at least forty-five (45) days prior to the end of the Initial Term or any Renewal Term, as applicable.
d. Termination for Cause. Either Party may terminate the Order Form if the other Party is in material breach of these Terms or the Order Form and such breach remains uncured thirty (30) days after receipt of written notice thereof.
e. Termination for Bankruptcy. Either Party may terminate the Order Form immediately by giving written notice to the other Party if the other Party: (i) makes an assignment for the benefit of creditors; (ii) becomes unable to pay its debts as they become due; (iii) dissolves or liquidates or files a voluntary petition in bankruptcy or a similar proceeding; (iv) has an involuntary petition in bankruptcy or a similar proceeding filed against such Party that is not stayed or dismissed within thirty (30) days; (iv) has a receiver appointed for all or substantially all of such Party’s assets; (v) has an execution made on all or substantially all of such Party’s assets; or (vi) experiences an event analogous to any of the foregoing in any jurisdiction in which any of its assets are situated.
f. Effect of Expiration or Termination. Any expiration or termination of the Order Form shall automatically result in the expiration or termination (as applicable) of the Agreement relating to such Order Form, including these Terms and the Supplemental Terms with respect to such Order Form, and including the Services covered in such Order Form. Expiration or termination of the Order Form shall not have the effect of terminating any other Order Form(s), nor these Terms or any Supplemental Terms incorporated by reference into such other Order Form(s) and forming a separate agreement between the Parties. Upon expiration or termination of the Order Form for any reason: (i) Client will pay Radancy for all Services rendered and expenses incurred as of the effective date of expiration or termination of the Order Form; (ii) all rights, and licenses granted to Client will immediately terminate and Client will cease accessing and using the Services under such Order Form; (iii) Radancy will immediately cease the provision of all Services under such Order Form (provided that upon written request by Client made within thirty (30) days after the effective date of termination or expiration of the Order Form, Radancy will make Client Data available to Client for export or download in a manner directed by Radancy); and (iv) each Party will promptly destroy all of the other Party’s Confidential Information provided pursuant to such Order Form, except that such Party will not be required to destroy copies of the other Party’s Confidential Information that (x) reside on such Party’s backup, disaster recovery or business continuity systems, (y) such Party is obligated by Applicable Law to retain or (z) is reasonably necessary to establish performance of the Agreement, which copies will remain subject to the duty of confidentiality under Section 8. All provisions necessarily requiring survival beyond any termination of these Terms, including, but not limited to the first sentence of Section 3(a)(i), Section 3(b), Section 6, the first sentence of Section 7, Section 8 through Section 12 and this Section 4(f) shall survive any expiration or termination of these Terms.
5. Fees; Payment.
a. Fees. Client will pay to Radancy all fees set forth in the Order Form (“Fees”) in accordance with the Agreement. Except as otherwise provided in the Order Form, Fees are billed annually in advance and are non-refundable.
b. Payment. Fees shall be paid within thirty (30) days of Client’s receipt of Radancy’s invoice. Late payments are subject, at Radancy’s discretion, to a penalty equal to three percent (3%) of the outstanding Fees, other than to the extent such Fees are disputed in good faith by Client. Without limiting any of Radancy’s termination rights in the Agreement, Radancy may suspend performance of the Order Form in the event that Radancy has not received full payment within ten (10) days of written notice that such payment is overdue.
c. Taxes. All Fees are exclusive of any sales tax, service tax, value added tax (“VAT”) or other tax that may be applicable to the transaction (“Taxes”), which, where chargeable by Radancy, will be set forth in the applicable invoice and shall be payable by Client. Taxes shall not include taxes based upon Radancy’s income.
6. Radancy Building Blocks. Except for the limited licenses expressly granted by Radancy to Client under these Terms, Radancy and its licensors retain all right, title, and interest in and to the Services (including, without limitation, any Software accessible through such Services, and any source code and object code related to such Software and/or the Services), and all design and business methods associated therewith, and all other software, firmware, sequences, scripts, interfaces, programming code, applets, executables, objects, files, utilities, services, technology, inventions, discoveries, designs, processes, tools, know-how, concepts, techniques, ideas, templates, routines, and methodologies or works of authorship, trademarks, service marks and trade names used in connection therewith, and all intellectual property rights therein owned by Radancy and conceived, created or reduced to practice by or for Radancy (alone or with others) prior to the Term or independent from the Services or which have general applicability to Radancy’s business (together with any improvements to any of the foregoing) (collectively, “Radancy Building Blocks”). Subject to the Agreement, to the extent any Radancy Building Blocks are incorporated into, and necessary for Client’s use of, the Deliverables in accordance with the Agreement, Radancy hereby grants to Client a royalty-free, irrevocable (except to the extent any term of the Agreement is breached), worldwide, non-exclusive, non-transferable (except as permitted under Section 12(f)), non-sublicensable (except to Client’s subcontractors solely for the purposes of using the Deliverables) license to reproduce, distribute, display and perform (whether publicly or otherwise), modify, and prepare derivative works of any Radancy Building Blocks solely as necessary for Client’s own use of the Deliverables. Except as set forth herein and as is necessary for Client to exercise its rights in and to the Deliverables hereunder, nothing in the Agreement will be deemed to grant to, or confer upon, Client any rights or license to the Radancy Building Blocks.
7. Deliverables and Derived Data. Client shall own (i) all works of authorship and other creative materials created by Radancy expressly for Client pursuant to the Agreement as described in the Order Form (collectively, “Deliverables”), and (ii) all data derived by Radancy hereunder from (a) Client’s use of the Services and/or (b) Client’s end users’ use of Client Sites (“Derived Data”). For the avoidance of doubt, the Deliverables and Derived Data do not include any Radancy Building Blocks. All Deliverables and Derived Data shall be deemed to be “work made for hire” (as such term is defined in 17 U.S.C. §101). To the extent that the Deliverables may not be considered “work made for hire”, Radancy hereby assigns and agrees to assign to Client all right, title and interest worldwide in and to such Deliverables and Derived Data, including all intellectual and proprietary rights related thereto, provided that Client hereby grants to Radancy and its Affiliates a worldwide, non-exclusive, non-transferable (except as permitted under Section 12(f)), non-sublicensable (except to Radancy’s and its Affiliates’ subcontractors) license to reproduce, distribute, display and perform (whether publicly or otherwise), modify, prepare derivative works of, host, transmit, and otherwise use the Deliverables and Derived Data, as reasonably necessary to provide the Services to Client in accordance with the Agreement.
8. Confidentiality/Data Protection
a. Confidentiality. In connection with the negotiation and performance of the Agreement, a Party (the “Receiving Party”) may receive Confidential Information (defined below) of the other Party (the “Disclosing Party”). “Confidential Information” means any and all information and materials disclosed by the Disclosing Party to the Receiving Party during the Term of the Agreement, including without limitation information about a Party’s products, software, and services (whether in writing, or in oral, graphic, electronic or any other form), that (i) is labeled confidential or proprietary, (ii) for information disclosed orally, is identified as confidential or proprietary at the time of or within a reasonable period of time after its disclosure or, (iii) if by the nature of its disclosure, it would be understood to be confidential or proprietary. Without limiting the scope of Radancy’s Confidential Information, the Radancy Platform, Radancy’s software (including the Software), products and services, the Radancy Building Blocks, as well as Radancy’s business terms, including pricing, related thereto, constitute Confidential Information of Radancy. Each Party agrees that the terms and conditions of the Agreement will be treated as Confidential Information of both Parties. Confidential Information is and shall remain the property of the Disclosing Party. The Receiving Party, during the Term and thereafter, shall take reasonable measures to maintain the confidentiality of the Disclosing Party’s Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of a similar nature. The Receiving Party shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations under, and as permitted by, the Agreement. For clarity, nothing in this Section 8 shall prevent Radancy from using any Client Materials, Deliverables, Derived Data or Aggregated Data as contemplated by the Agreement. The Receiving Party may disclose the Confidential Information of the Disclosing Party to their employees, subcontractors or consultants with a need to know for the performance of the Agreement (subject to disclosure restrictions comparable to those set forth herein). Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information of the Disclosing Party (x) to the extent required by law or pursuant to the order or requirement of, or in connection with proceedings before, a court, administrative agency, or other governmental body; (y) is required to be disclosed in an arbitration, mediation or court proceeding in order to enforce or defend a Party’s rights; and (z) on a confidential basis to its legal and/or financial advisors. In the event Receiving Party is required to disclose any of Disclosing Party’s Confidential Information by law or pursuant to the order or requirement of, or in connection with proceedings before, a court, administrative agency, or other governmental body, Receiving Party shall (1) give Disclosing Party, to the extent possible, reasonable advance notice prior to disclosure so Disclosing Party may contest the disclosure or seek a protective order, (2) provide reasonable cooperation with Disclosing Party’s efforts to do so (at Disclosing Party’s expense) and (3) if disclosure if ultimately required, reasonably limit the disclosure to the minimum amount legally required to be disclosed.
The provisions of this Section 8(a) (Confidentiality) shall not apply to information that: (A) is or becomes publicly available, without fault of Receiving Party, its Affiliates or their respective subcontractors, directors, officers, employees, servants, agents or invitees; (B) is disclosed to Receiving Party by a party who is not under any legal obligation to Disclosing Party or its Affiliates prohibiting such disclosure; (C) is known by Receiving Party as evidenced by written record before disclosure under the Agreement; or (D) is developed by Receiving Party without the use or reference to any Confidential Information of the Disclosing Party or its Affiliates.
b. Data Protection. Radancy shall maintain an appropriate information security program that is designed to protect the security, privacy, confidentiality, and integrity of Client Data and make use of appropriate administrative, technological, and physical safeguards. The Parties shall comply with all Applicable Law with respect to the collection, storage, transmission or other processing of all Personal Data. The Data Protection Addendum located at www.radancy.com/DPA, is hereby incorporated by reference into and made a part of these Terms. Client acknowledges and agrees that Client’s Personal Data may be transferred, processed and stored in the European Union or United Kingdom, in all cases in accordance with the Data Protection Addendum.
a. By Radancy. Radancy shall defend Client, its members, managers, officers, employees, and Affiliates (collectively, the “Client Claimants”) against, and pay any final judgment relating to, any and all third party claims, liabilities, losses, expenses (including reasonable attorney’s fees and legal expenses related to such defense), fines, penalties, taxes or damages (collectively, “Claims”), asserted against, imposed upon or incurred by the Client Claimants resulting from or arising out of any (i) claim that the Services infringe any copyright, patent, trademark, right of publicity or other third party intellectual property right (an “Infringement Claim”), (ii) breach by Radancy of its confidentiality obligations under Section 8(a), (iii) any Data breach leading to the accidental or unlawful or unauthorized destruction, loss, alteration, disclosure of, or access to, Personal Data (“Data Breach”) arising from Radancy’s breach of its data protection obligations under Section 8(b), or (iv) Radancy’s gross negligence or willful misconduct.
b. Infringement Claims. In the event of any Infringement Claim, Radancy may, at its option: (i) obtain the right to permit Client to continue using the affected Service(s), as applicable; (ii) modify or replace the relevant portion(s) of the Service(s) with a non-infringing alternative having substantially equivalent performance; or (iii) terminate the Order Form as to the infringing Service(s) and provide a pro rata refund of any prepaid, unused Fees for such infringing Service(s). Except for Radancy’s indemnification obligations, the foregoing shall be Client’s sole and exclusive remedy in the event any Services or Deliverables provided by Radancy are subject to any third-party infringement claims. Notwithstanding the foregoing, Radancy will have no liability for any Infringement Claim of any kind to the extent that it results or arises from: (w) modifications to the Services made by a party other than Radancy; (x) the combination of the Services with other products, processes or technologies (where the infringement would have been avoided but for such combination); (y) Client’s use of the Services other than in accordance with the Agreement; or (z) Radancy’s compliance with specifications provided by Client.
d. Procedures. The indemnified Party will give the indemnifying Party prompt written notice of any Claim for which it seeks indemnity, provided that failure to provide timely notice shall not relieve the indemnifying Party of its indemnification obligations unless and to the extent such Party is materially prejudiced by such failure. The indemnifying Party shall have sole control of the investigation, defense, and settlement of the Claim unless the indemnifying Party fails or refuses, notwithstanding notice as set forth above, to undertake the defense of the Claim. The indemnifying Party shall not, without the prior written consent of the indemnified Party (such consent not to be unreasonably withheld, delayed or conditioned), enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified Party that is not covered by the indemnification; (ii) imposes a material, non-monetary obligation on the indemnified Party; (iii) does not include an unconditional release of the indemnified Party; (iv) admits liability on the part of the indemnified Party; and/or (v) is non-confidential. The indemnified Party will cooperate with the indemnifying Party at the indemnifying Party’s expense. The indemnified Party may participate in its defense with counsel of its own choice at its own expense.
10. Limitation of Liability
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT (OTHER THAN SECTION 10(b)), (I) NEITHER PARTY (INCLUDING SUCH PARTY’S RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS), SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EXCEPT FOR (X) CLIENT’S BREACH OF SECTION 3(C), (Y) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, OR (Z) EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OR ANY MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY (INCLUDING WITH RESPECT TO RADANCY, ITS SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS) FOR ANY CLAIM ARISING OUT OF OR RELATING TO ANY ORDER FORM INCORPORATING THESE TERMS BY REFERENCE, EXCEED THE TOTAL FEES PAID AND/OR PAYABLE UNDER ALL SUCH ORDER FORMS DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM UNDER ANY SUCH ORDER FORM. FOR CLARITY, MULTIPLE CLAIMS UNDER ONE OR MORE ORDER FORMS SHALL NOT ENLARGE OR EXTEND THE FOREGOING LIMITS.
b. NOTWITHSTANDING SECTION 10(a), THE MAXIMUM LIABILITY OF EACH PARTY (INCLUDING WITH RESPECT TO RADANCY, ITS SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS) FOR ANY CLAIM ARISING OUT OF OR RELATING TO (I) SUCH PARTY’S INDEMNIFICATION OBLIGATIONS FOR A DATA BREACH, (II) A BREACH OF SUCH PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, OR (III) ANY DATA BREACH, SHALL NOT EXCEED TWO TIMES (2X) THE TOTAL FEES PAID AND/OR PAYABLE DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
11. Representations and Warranties.
a. Radancy Representations and Warranties. Radancy represents and warrants that it will perform the Services in a professional manner consistent with general industry standards.
c. Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY (INCLUDING WITH RESPECT TO RADANCY, ITS SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS) DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, (I) THE SERVICES (INCLUDING THE SOFTWARE ASSOCIATED THEREWITH), DELIVERABLES AND DERIVED DATA ARE MADE AVAILABLE AND/OR PROVIDED BY RADANCY ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND (II) RADANCY AND ITS SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS DO NOT WARRANT: (A) AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE SERVICES; (B) THAT THE, CONTENT, DATA, INFORMATION OR FUNCTIONS ASSOCIATED WITH THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, BE TIMELY, ACCURATE OR UP-TO-DATE, OR BE FREE FROM MISTAKES OR ERRORS; (C) THAT THE PROVISION OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (D) THAT DEFECTS IN ANY SERVICES (INCLUDING ANY SOFTWARE), DELIVERABLES OR DERIVED DATA WILL BE CORRECTED.
a. Independent Contractor. In performing or making available the Services, Radancy is an independent contractor and none of Radancy or its Affiliates, or its or their officers, employees, agents and/or subcontractors, is an employee of Client. As between Radancy and Client, Radancy shall be solely responsible for the payment of labor employed or hired by Radancy, whether on contract or other status, including all social benefits, compensation, termination payments, and all benefits of whatever description required by Radancy’s employment policies or practices.
b. Waiver; Amendment. None of the terms and conditions of the Agreement shall be deemed waived or amended by either Party unless such waiver or amendment is executed in writing by a duly authorized agent or representative of each of the Parties. The waiver by either Party of a breach of or a default under any provision of the Agreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor shall any delay or omission on the part of either Party to exercise or to avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. Except as otherwise expressly provided herein, no remedy specified in the Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other right or remedy provided herein or available at law or in equity. The right of either Party to require strict performance will not be affected by any previous waiver, action or course of dealing.
c. Severability. If any term of the Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other term hereto, and the Agreement will be interpreted and construed as if such term, to the extent the same will have been held to be invalid or unenforceable, had never been contained herein.
d. Governing Law; Venue; Waiver of Jury Trial. The Agreement and any disputes arising hereunder will be governed by the laws of the State of New York, without regard to choice of law principles. Each Party hereby consents to the exclusive jurisdiction and venue in the state and federal courts located in New York County, New York in connection with any action, lawsuit or proceeding relating to the Agreement or any dispute hereunder, and hereby waives any defense of forum non conveniens in connection therewith. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, LAWSUIT OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THE AGREEMENT OR ANY DISPUTE HEREUNDER.
e. Entire Agreement. These Terms and the Supplemental Terms, together with the Order Form(s), constitute the entire agreement between the Parties pertaining to the subject matter hereof. The Agreement supersedes all prior representations, agreements, understandings and commitments, whether oral or written, between the Parties concerning the subject matter hereof. In the event of an irreconcilable conflict among any of the following documents, the order of precedence shall be: (1) the Order Form; (2) the Supplemental Terms, solely with respect to the specific Services to which such Supplemental Terms apply; and (3) these Terms.
f. Assignment. Neither Party may assign its rights and obligations under the Agreement, either in whole or in part, without the prior written consent of the other Party (not to be unreasonably withheld) except that either Party may assign, without prior consent, its rights and obligations under the Agreement in their entirety (including the Order Form) to an acquiror of all or substantially all of a Party’s stock, assets or business. Except as provided herein, any purported assignment, transfer or delegation by a Party shall be null and void. The provisions of the Agreement shall bind and inure to the benefit of the Parties hereto and their respective transferees, successors and assigns.
g. No Third-Party Beneficiaries. Except as otherwise provided herein, the Agreement is intended solely for the benefit of the Parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
h. Force Majeure. Neither Party shall be liable to the Client for any delay or failure to perform any obligation under the Agreement (other than a Party’s obligation to pay Fees due hereunder) if the delay or failure is due to unforeseen events which occur after the execution of the Order Form and which are beyond the reasonable control of the non-performing Party, such as a labor shortage, strike, blockade, war, acts of civil or military authority, act of terrorism, riot, national emergency, epidemic or other public health emergency, government action or regulation, fire, flood, earthquake or other natural disaster, or failure or diminishment of power or telecommunications or data networks or services, or similar occurrences.
i. Notices. Any notice hereunder will be in writing to the address set forth in the Order Form and will be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) one (1) day after it is sent if by next day delivery by a major commercial delivery service or by electronic mail with evidence of transmission. Either Party may amend its address at any time by written notice to the other Party. A copy of all notices to Radancy, which shall not itself constitute notice, shall also be sent to email@example.com.
j. Construction. The captions and the section and paragraph headings used in these Terms are inserted for convenience only and shall not affect the meaning or interpretation of these Terms. Unless the context requires otherwise, as used herein the term “including” means “including, without limitation,” and the term “include(s)” means “include(s), without limitation.”
Supplemental Terms & Conditions
These Supplemental Terms & Conditions (“Supplemental Terms”) supplement and form a part of the Radancy Standard Terms and Conditions (the “Terms”) between Radancy and Client and are applicable to the extent that Client purchases any of the following Services pursuant to the Order Form. Supplemental Terms for any given Service, as described below, will apply exclusively to that Service, except that the Career Site Supplemental Terms will apply to all Services provided via the Career Site unless to the extent terms for a specified Service conflict therewith, in which case the more specific terms will apply. Capitalized terms used but not defined in these Supplemental Terms shall have the meanings ascribed to them in the Terms or the Order Form.
Career Site Supplemental Terms
If Client has entered into an Order Form for Career Site Services, the following Career Site Supplemental Terms apply:
1. Radancy Platform Services. Utilizing the Radancy Platform, Radancy will create and maintain, on Client’s behalf, an Internet website (a “Career Site”), consisting of web pages designed to maximize organic Internet search results. Such web pages will reflect Client’s employer brand, including content supplied by Client, as well as creative materials and content created by Radancy. The Career Site web pages may include, without limitation, pages enabling job searches, descriptions of Client’s business and job descriptions, i.e., pages focusing on specific career categories and opportunities with Client). These web pages will be linked using one or more proprietary Radancy templates (which, for clarity, shall be deemed Radancy Building Blocks) incorporating Client Materials, designed by Radancy and approved by Client. The web pages will be updated frequently by Radancy to include currently listed open job opportunities with Client and to incorporate links therein to Client’s own ATS, where applicable. As agreed between Radancy and Client, Client’s open job opportunities may be delivered or accessed by means of file transfer, scraping of Client’s career website or directly from Client’s ATS, using an application program interface (“API”) supplied by the ATS, which shall provide Radancy with direct access to the job data maintained in Client’s ATS. All web pages created by Radancy using the Radancy Platform will be located at a subdomain of Client’s company website or at a domain name (to be purchased by Radancy at Client’s expense or provided by Client) selected to assist in optimizing search engine response.
2. Career Site Hosting Services. Radancy shall provide Client with adequate space on Radancy’s servers to enable the listing of Client’s open job opportunities at any given time to host Client’s Career Site and to allow access by third parties thereto. Except as expressly permitted (e.g., via Radancy’s Content Management System as may be set forth in the Order Form), Client shall not have direct access to modify Client’s Career Site (or any web pages thereof). Radancy reserves the right, in its sole discretion, to accept or reject any request by Client to apply or insert third-party cookies and any other code into the hosted Career Site. Radancy may condition acceptance of any third-party cookies or code on additional agreement(s) with Client and/or its third-party vendors.
Candidate Relationship Management (CRM) Supplemental Terms
If Client has entered into an Order Form for CRM Services, the following CRM Supplemental Terms apply:
1. Rights and Restrictions. Notwithstanding anything to the contrary in the Terms, the rights granted to Client to access and use CRM under Section 2(a) of the Terms are limited to Client’s internal business uses only. Client shall not commercially exploit or resell to any third-party CRM in whole or in part, or any of the functionality contained therein.
2. Client Obligations. In using CRM (including with respect to sending any email correspondence and/or SMS texts using CRM), Client shall comply with all Applicable Law, including without limitation applicable anti-spam regulations and “do not call registries” as well as any guidelines and restrictions provided by Radancy to Client in writing.
Employee Referrals Supplemental Terms
If Client has entered into an Order Form for Employee Referrals Services, the following Employee Referrals Supplemental Terms apply:
1.Radancy will provide to Client integration and maintenance related to Employee Referrals. Radancy will provide detailed instructions to Client on how to prepare Client’s own systems to be integrated with Employee Referrals. Once Client has followed all such instructions, then Radancy will prepare and configure integration of Client’s systems and the Employee Referrals and Client will provide Radancy with all cooperation reasonably necessary to complete such integration. Client will be responsible for the arrangement of its own Employee Referrals Program, including provision of bonuses or other incentive awards to employees who successfully refer candidates.
2. Client’s Employee Referrals platform created by Radancy using the Radancy Employee Referrals Service will be located at a subdomain to be determined by Radancy in consultation with Client.
3. Radancy will make available to Client’s employees for download (via the App Store, Google Play or other platform) a branded instance of Radancy’s “My Referrals” application, which may be used by employees, inter alia, to identify opportunities, make referrals and track their results.
Metrics Services Supplemental Terms
If Client has entered into an Order Form for Metrics Services, the following Metrics Services Supplemental Terms apply:
1. Metrics Services.
(a) Conversion Tracking Pixel Implementation. Radancy will generate a conversion tracking pixel(s) to place on Client’s Career Site and ATS. Client will, and will ensure its technical team, ATS, human resource information system (“HRIS”), or web asset management team(s) (“Web Manager”), as necessary, cooperate with Radancy to scope and place the conversion pixels in the appropriate place. The standard implementation includes a single conversion pixel on up to three (3) workflows. Any additional conversion workflows requested by Client may be subject to an additional cost, which will be determined during the project discovery period and agreed to in writing by the Parties. Any change to Client’s ATS during the Order Form Term may require the Parties to execute a revised Order Form.
(b) Media Tracking Tags. Radancy will generate, traffic, and provide quality assurance (QA) regarding media tracking tags for the life of the applicable campaign. This includes tag generation, coordination with media vendor(s) to have the tracking tags placed, and regular monitoring of tag activity. Radancy will only provide the media tracking services described in this Section 1(b) for media campaigns booked or managed by Radancy. Radancy reserves the right, in its sole discretion, to limit the sources requested for tagging and tracking or temporarily suspend such services in the event one or more media tracking tags have been implemented improperly and are incurring undue third-party tracking costs.
(c) Analyst Services. If Client has purchased Full-Service or Premium Metrics Services, as indicated on the Order Form, Radancy will provide up to the number of hours of Radancy analyst time to be used in connection with the Metrics Services purchased as set forth in the Order Form. Any hours remaining at the termination of the Order Form Term may not be used with any other service and will be forfeited.
2. Client Obligations.
(a) Tracking Fees. Radancy uses a third-party platform as part of its Metrics Services. Fees for this Service may be based on actual click and impression activity from the tracking tags or other activity. Unless otherwise set forth in the Order Form, Radancy will pass through to Client the fees for all third-party tracking fees associated with these tags, without markup, and will invoice Client for such fees monthly in arrears.
(b) Integration with Client’s ATS/HRIS/Web Manager. Client is responsible for any and all fees charged by Client’s ATS, HRIS and/or Web Manager in connection with the Metrics Services provided by Radancy, including for implementation of Radancy conversion pixels. Further, Client acknowledges that the Metrics Services, or certain portions thereof, may not be compatible with all such Services. Client is also responsible for implementing the script required for Radancy to provide the Metrics Services. Radancy shall not be responsible for any third-party delays or failures to communicate, providing required information or properly implementing required feeds. Any change of ATS, HRIS, or Web Manager by Client during the Order Form term may result in (i) additional implementation costs, and/or (ii) interruption in Radancy’s ability to provide track to hire (“TTH”) information, if applicable, and Radancy shall not be responsible for any such costs or interruptions.
(c) Track to Hire Data Requirements. If Client has ordered Track to Hire Services, as indicated on the Order Form:
i. Client acknowledges that Radancy TTH reporting requires, and Client agrees to provide Radancy periodic file exports, as set forth in the Order Form, from Client’s ATS or system of record that contains the number of all hires made during the applicable period. The file format and transfer method will be finalized as part of the discovery period but will require secure data transfer via Secure File Transfer Protocol, LeapFILE or Egnyte. Each such file will be accepted and loaded into Client’s database.
ii. Each such file shall include for each applicable candidate, applicant or hire, (1) Candidate ID or Applicant ID, and (2) Hire Date or Offer Date. Optional fields to be included in the ATS file include: (A) Job Category, (B) Job Location, (C) Job Title, and (d) Requisition ID.
iii. Except as otherwise expressly agreed herein, such file exports shall not include any Personal Data, including, without limitation: (a) Applicant/Candidate/Hire Name, (b) Applicant/Candidate/Hire Email, (c) IP address, (d) Social Security number, and (e) other sensitive personal information about the Applicant/Candidate/Hire.
3. Reporting. The Metrics Services will include certain data points relating to Client’s media campaigns (“Media Data”), which may be tracked by impression, click, or both depending on the capabilities of the applicable media vendor. Reports containing the Media Data (“Media Report(s)”) will be accessible online via Radancy’s Insights & Analytics portal. Client may export the Media Data from the Insights & Analytics portal. Automated transfer of the Media Data to Client or Client’s access to Radancy data systems or data storage are not included in the Metrics Services. Client shall not have access to any functionality beyond the Insights & Analytics portal.
Hosted Apply Supplemental Terms
If Client has entered into an Order Form for Hosted Apply, the following Hosted Apply Supplemental Terms apply:
1. Conditions. In order to access and use Hosted Apply, Client must have a Career Site and Client’s ATS vendor must be Workday.
2. Hosted Apply Service. Hosted Apply utilizes Workday’s APIs to facilitate direct submission of third-party applicant data to Workday. Once an applicant submits an application to Client via Hosted Apply, the applicant’s data is sent directly to Workday via such Workday API.
3. Data Transfer Details. The Radancy Platform will cache the applicant data until the API’s request to submit to Workday is complete, at which point the applicant data will be deleted by Radancy. Prior to accessing and using Hosted Apply, Client will provide data transfer details as requested by Radancy.
Programmatic Ad Technology Supplemental Terms
If Client has entered into an Order Form for Programmatic Advertising Technology services (“Programmatic AdTech Services”), the following Programmatic AdTech Services Supplemental Terms apply:
1. Programmatic AdTech Services.
a. As part of the Programmatic AdTech Services, Radancy shall provide management services of media acquired by Radancy on behalf of Client. A Radancy performance-based media analyst will configure Client requests, manage third-party publishers, oversee performance, and make adjustments as needed to maximize ROI.
b. In order for advertising to be optimized based on specific parameters requested by the Client, such as limiting advertising to users who have visited a specific page on the Career Site, conversion tracking tags must be implemented prior to launch. Radancy’s Performance Media team will implement such tags in accordance with the Agreement, including the Metrics Supplemental Terms above, if such tags have not been previously implemented by Radancy. Ads distributed via Radancy’s Programmatic AdTech Service cannot launch until conversion tracking tags have been implemented and validated.
c. Client hereby authorizes Radancy to complete Client’s media purchase requests via Programmatic AdTech. Each request (“Request”) must be in writing (including by email), in the Media Purchase Authorization Form attached hereto as Exhibit 1, identifying the media categories and the approved dollar amount allocated by Client or such other form as Radancy may provide.
2. Categories of Media. The following categories of media may be managed in connection with the Programmatic AdTech Services (collectively, “Performance-Based Media”):
a. Programmatic Jobs: A form of advertising in which the purchaser pays only when there are measurable results, such as an ad impression, ad click or down-stream action, such as a job application. Radancy delivers Programmatic Jobs advertising using its proprietary programmatic recruitment platform across a variety of relevant media. Programmatic Jobs also includes a form of advertising (“Slots”), in which job postings are pre-purchased and Client’s inventory is intelligently managed utilizing Radancy’s programmatic advertising technology.
b. Search Engines (e.g., Google, Bing): Radancy researches and selects high-performing job-related keywords to target based on Client’s hiring initiatives.
c. Social Networks (e.g., LinkedIn, Facebook): These social platforms offer the opportunity to drive brand awareness and promote key initiatives within the company.
d. Programmatic Display (e.g., Display, Video, Connected TV): Programmatic Display is designed to automatically build highly defined audiences based on user behavior on Client’s career site. These audience lists can then be used for real-time bidding and other auction-based advertising to reach candidates across the internet.
3. Client Obligations.
a. Job Feed. Each media purchase for sponsored job ads and search ads through Radancy's proprietary network of publishers requires an export of Client’s jobs, either from Client’s Career Site or directly from Client’s ATS. If a job feed from Client’s Career Site is not available, Client shall cooperate with Radancy to provide it with timely access to Client’s ATS or other source of job listings in accordance with the Terms. Client also acknowledges that published job ads are subject to the terms and conditions of the applicable third-party publisher, including without limitation prohibitions on material that infringes third-party intellectual property rights or privacy rights, pornographic or libelous material or distribution of false or misleading job ads, and agrees that any job ads or other materials provided to Radancy for publication will be in compliance with all such terms and conditions.
b. Other Information Provided by Client. From time to time, Client may request that Radancy target advertising based upon characteristics associated with audience lists created or obtained by Client. Client represents and warrants that the information contained in such lists will be hashed or otherwise modified so as not to provide Radancy any Personal Data. Client further represents and warrants that Radancy’s use of such information to provide the Services, including without limitation marketing, shall not violate Applicable Law.
c. Tracking Tags. In order for advertising to be optimized based on a specific action, conversion tracking tags need to be implemented prior to launch – the Performance Media team will supply such tags if tags haven’t been previously implemented. In the case of Programmatic Jobs, advertising cannot be launched until conversion tracking tags have been implemented and validated.
d. Platform Access. Certain media suppliers, such as LinkedIn or Facebook, may require individual authorization in order for Radancy to advertise on Client’s behalf. Client acknowledges and agrees that Radancy cannot provide the advertising services until Client has obtained such authorization for Radancy.
a. The Programmatic subscription Fees set forth in the Order Form allow Radancy to purchase a defined amount of media, calculated at Radancy’s net cost, via Programmatic AdTech per subscription year (“Allowable Media”). Recommendations will be discussed with Client and shall only be implemented by Radancy upon Client’s written consent, which may be by email. All media costs will be invoiced at net upon receipt of Client’s media purchase authorization. Media purchases above the Allowable Media will be subject to Radancy’s standard rate card programmatic subscription Fee, which includes media and services Fees. During the Order Form Term, Radancy may recommend reallocation of funds from one media category to another based on the performance of the requested media purchase or campaign, or other adjustments proposed by Client to meet its goals. Allowable Media shall reset at the beginning of each year of Client’s subscription. All Programmatic AdTech Services subscription Fees are non-refundable. Radancy’s obligations under these Programmatic Advertising Technology Supplemental Terms are contingent upon timely payment of all Fees by Client.
Insights & Analytics Supplemental Terms
If Client has entered into an Order Form for which Insights & Analytics Services are also provided as set forth in the applicable Order Form, the following Insights & Analytics Supplemental Terms apply:
Radancy shall provide Client with access to its proprietary platform, Insights & Analytics, via password, for up to the number of authorized employee users set forth in the applicable Order Form. Client may export the available data from Insights & Analytics. Automated transfer of Insights & Analytics data to Client, or Client’s access to Radancy data systems or data storage are not included with Insights & Analytics.
Hiring Events Supplemental Terms
If Client has entered into an Order Form for Hiring Events Services, the following Hiring Events Supplemental Terms apply:
1. Authorized Users. Client’s employees, consultants, contractors, end users, and agents (a) who are authorized by Client to access and use the Hiring Events Services and (b) for whom access to the Hiring Events Services has been purchased hereunder are “Authorized Users” of the Hiring Events Services. Client is responsible for all acts and omissions of Authorized Users, and any act or omission of an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client.
3. Usage. Client is responsible and liable for any and all access to and use of the Hiring Events Services, user manuals, support documents, support articles, training, handbooks, and guides relating to the Hiring Events Services, either electronically or in hard copy form (“Hiring Events Documentation”) resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
4. Usage Allowances. If Client exceeds any usage allowances identified on the Order Form(s) during any Term, Client shall pay to Radancy the list unit price, as may be identified on the Order Form, for any such overages. Notwithstanding the foregoing, Radancy reserves the right to block Client usage once Client has reached a usage allowance limit during any Term.
*Updated November 30, 2023
Media Purchase Authorization Form
Radancy ("Radancy") has received a request (the "Request"), as described below, to purchase media pursuant to the Programmatic AdTech Services Statement of Work between __________ (“Client”) and Radancy. Before Radancy executes the Request, it requests that you confirm the Request by replying to this email and placing your initials below where indicated. Upon receipt of approval, Radancy will issue an invoice in the amount of the Budget and will commence the requested purchase and distribution of media.
Total Term to Date $
Requesting Division (if applicable):
__ I confirm that I have requested Radancy to commence the media purchase described above.
__ I further confirm that I am authorized to place this order on Client’s behalf.