Service Agreement

Service Agreement

This Customer Service Agreement (the “CSA” or this “Agreement”) sets forth the terms and conditions pursuant to which Finalist Corporation (“Finalist”) will provide Customer identified in the Order Form (defined below) with the right to access and use the Services. Capitalized terms used and not defined herein shall have the meanings set forth in the Order Form or the other incorporated exhibits.

 

  1. DEFINITIONS.


“Authorized User” means any individual who is an employee or agent of Customer authorized, by virtue of such individual’s relationship to, or permissions from, Customer, to access the Services pursuant to Customer’s rights under this Agreement.


“Candidate” means an individual registered to use the Services and seeking employment opportunities through the Services.


“Candidate Assessment” means (a) all data provided through the Services by Customer, about a Candidate, and (b) all other evaluations, “assessments, profiles, or other output from any services provided by Finalist regarding a Candidate.

 

“Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential. Finalist Confidential Information includes the Services and related technology, product plans, pricing and Access Protocols.


“Customer Content” means the data, media and content posted, uploaded or otherwise provided by Customer through the Services, including the Employer Profile.


“Employer Profile” means (a) all data provided to Finalist by Customer about Customer, and (b) the profile of Customer that is developed by Finalist pursuant to this Agreement, based on some or all Employee Profile information, but does not include the information in any individual Employee Profile.

 

“Order Form” means a document signed by both Parties (or web page(s) that are part of Customer’s registration process or account) identifying the given type of Services to be made available by Finalist pursuant to this Agreement.


“Referring Customer” means a customer that is providing information, either through posts or direct contact with a Seeking Entity, about a Candidate based on the Referring Entity’s prior interactions with such Candidate.  

 

“Seeking Customer” means a customer looking to hire and that is using the Services to collect information on Candidates who are candidates for the open job position. Customer may be a Referring Customer and a Seeking Customer concurrently but not for the same job posting or for the same Candidate.

 

“Services” means the services provided by Finalist including the right to access and use certain content, software and related technology features and functionality made available through a site or application hosted by or on behalf of Finalist and that enable employers to share and exchange assessments of job candidates.  

 

  1. ACCESS AND USE.


2.1 Provision of Access. Subject to the terms and conditions of the Agreement, Finalist grants Customer a non-exclusive, non-transferable right and license to access and use the Services during the Term through a site hosted by or on behalf of Finalist, solely for (i) Customer’s internal business purposes and (ii) the number of Authorized Users paid for by Customer. On or as soon as reasonably practicable after the Effective Date, Finalist shall provide to Customer the necessary materials for Customer to create passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow Customer to access the Services.


2.2 Responsibility for Application and Content Hosting. Finalist shall, at its own expense, host the online based Services. Any development, connectivity, telecommunications or computer network hardware required to provide access to the Internet or the Services is the responsibility of Customer.


2.3 Usage Restrictions. Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain the source code from which any software component of the Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to use such code; (ii) create any derivative works or competing product from any of the foregoing; or (iii) allow third parties other than Authorized Users to gain access to or use of the Services. Customer will ensure that its use of the Services complies with all applicable laws, statutes, regulations or rules.


2.4 Employer Content. Finalist will have the right to (a) use any de-identified data or information collected from the Customer Content or Candidate Assessments; and (b) disclose any Candidate Assessments (to the extent allowed under the Finalist Individual User Terms of Service or Privacy Policy) and any aspects of the Customer Content that are de-identified and cannot be associated with Customer or Customer Content.  Notwithstanding the foregoing, Finalist will have the right to use and disclose any aspect of the Customer Content and Candidate Assessments in order to provide the Services and meet its obligations under this CSA.

 

  1. IMPLEMENTATION AND SUPPORT.


3.1 Implementation Services. The Services will be made available to Customer within the timeline mutually agreed upon during the onboarding process. The “Support Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Finalist as required for use of the Services. Such Support Environment includes, but is not limited to, telecommunications and Internet services. Customer shall be solely responsible for any and all costs, fees, expenses, and taxes of any kind related to the Support Environment. Finalist shall not be liable for any loss or corruption of data, lost communications, or any other loss or damage arising from any such telecommunications and Internet services.


3.2 Customer Support.  During the Term, Finalist will provide Customer support via email during the hours of 9am – 5pm Eastern Time Monday through Friday (national holidays excepted).

 

  1. CUSTOMER RESPONSIBILITIES.


4.1 Authorized Users Access to Services. Customer may permit any Authorized User to access and use the features and functions of the Services as contemplated by this Agreement. Access Protocols cannot be shared or used by more than one Authorized User at a time.


4.2 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all Customer Content, Candidate Assessments originating from Customer, and the security of all Access Protocols required in order to access and use the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the all Customer Content and Customer’s Candidate Assessments.


4.3 Services Rules and Guidelines. Customer shall use the Services solely for its internal business purposes as contemplated by this Agreement and shall not use the Services to: (a) harvest, collect, gather or assemble information or data regarding other users without their consent; (b) transmit through or post on the Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (c) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (e) attempt to gain unauthorized access to the Services, computer systems or networks related to the Services; or (f) interfere with another user’s use and enjoyment of the Services.

 

  1. FEES AND PAYMENT.


5.1. Fees. In consideration for the access rights granted to Customer and the Services provided by Finalist under this Agreement, Customer will pay to Finalist, without offset or deduction, all fees set forth on the Customer Account Page in full. All fees are due and payable within thirty (30) days of the invoice date. Unless Finalist in its discretion determines otherwise, all fees will be billed in U.S. dollars.

If a Customer can establish that the Customer had an Active Process (as defined below) with the Candidate before using Our Site and Service (e.g., the Candidate had already begun the interview process with the Client and such process had not been terminated, or the Client had received the Candidate’s resume from an employment agency or headhunter or source other then Finalist and the Candidate was under active consideration by the Customer), the Customer may be exempted from paying the Fee. “Active Process” shall mean continuous direct, back & forth communication, in an active recruiting or hiring context where a decision to put a candidate on hold or reject has not been made, within the six (6) months prior to using the Site or Service for a Candidate that exists in Client’s applicant tracking system or that was submitted by a recruiting agency.

If a Customer circumvents Our Site and/or Service after discovering a Candidate through Our Site or Service and subsequently hires that Candidate within twelve (12) months of the date on which the Customer first viewed the Candidate on through Finalist, the Customer will pay a Success Fee equal to 25% of the 1st year base salary or prorated contractor compensation of the Candidate and Finalist may, in its sole discretion, terminate the Customer’s account.

 

5.2.  Referral Bonus.  If a Candidate Assessment has been created by a Referring Customer and the specific Candidate of that Candidate Assessment is hired by a Seeking Company, the Seeking Company will pay (a) the Referring Customer a referral bonus and (b) Finalist a fee as described on the Finalist site, your account, or the Order Form.  Finalist will maintain an account of the referral bonuses received by Customer (e.g., a credit), net of any referral bonuses paid out of such credit.  Finalist will not maintain such credits in a separate account and will not pay any interest on such amounts.  Customer may choose to receive a check for the balance of its credits (net of any referral bonuses owed by Customer) at any time. 

 

5.3. Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges, other than taxes based on Finalist’s income.

 

5.4 Credits. We value our customer’s satisfaction in using our platform and service to hire great candidates. If (1) a customer hires a candidate and terminates the candidate’s employment based on unsatisfactory performance within ninety (90) days of the start date, (2) a candidate voluntarily terminates his or her employment within ninety (90) days of the start date, or (3) candidate does not start employment because either customer or candidate elects not to begin the employment relationship contemplated in the covered offer, (each, a “Termination Event”), upon written receipt and confirmation of such information, Finalist will provide a credit for an additional placement corresponding to the success Fee related to the candidate who was the subject of the termination event if such success fee was paid by customer prior to the termination event.

 

  1. CONFIDENTIAL INFORMATION. Each Party may use Confidential Information of the other Party solely (i) to exercise its rights and perform its obligations under this Agreement; or (ii) in connection with the Parties’ ongoing business relationship. The receiving Party will not use any Confidential Information of the other Party for any purpose not expressly permitted by the Agreement, and will disclose such Confidential Information only to the employees or contractors of the receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Party’s duty hereunder. The receiving Party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The receiving Party shall return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Finalist may collect aggregated statistical data from Customer Content and Candidate Assessments and may use such aggregated statistical data for Finalist’s business purposes and to the extent that such does not contain Sensitive Data. External use of Customer data may be used (i.e. case studies, etc.) if mutually agreed upon by both parties in writing. Notwithstanding the foregoing, the confidentiality restrictions above will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

 

  1. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. Customer represents and warrants that it will use Services and Service Information only as a component (and not the sole or predominant factor) in any employment decision or action. “Service Information” means information that is the result of any analysis or processing by Finalist or is provided to Customer by through the Services (including Candidate Assessments).

 

  1. DISCLAIMERS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FINALIST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES PERFORMED BY FINALIST ARE PROVIDED “AS IS,” AND FINALIST DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. FINALIST DOES NOT WARRANT THAT ANY SERVICES PROVIDED BY FINALIST WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  FINALIST DOES NOT RECOMMEND, SPONSOR OR OTHERWISE ENDORSE ANY USERS, CANDIDATES OR CUSTOMERS THAT USE OR OTHERWISE PARTICIPATE IN THE SERVICES.

 

  1. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PAYMENT OBLIGATIONS AND INTELLECTUAL PROPERTY INFRINGEMENT, THE CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF (i) FIFTY U.S. DOLLARS ($50) AND (ii) THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO FINALIST BY CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. Customer acknowledges and understands that the limitations of liability set forth in this Section 9 form an essential basis of the agreement between the Parties, that the Parties have relied upon such limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such limitations of liability, the terms and conditions of this Agreement would be substantially different.

 

  1. INDEMNIFICATION.


10.1 Indemnification of Customer. Finalist agrees to (a) defend Customer against any and all claims by any third party that the Services infringe such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; and (b) pay any damages awarded or settlement amounts agreed to, provided that Customer promptly notifies Finalist in writing of the claim, cooperates with Finalist, and allows Finalist sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Finalist, at Finalist’s sole discretion, to enable it to continue to use the Services, or to modify or replace any such infringing material to make it non-infringing. If Finalist determines that none of these alternatives is reasonably available, Finalist may terminate the services that are the subject of the infringement claim. This Section 10.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Services by Customer, or (ii) combination, operation or use of the Services with other software, hardware or technology not provided by Finalist, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”). IN NO EVENT SHALL FINALIST’S LIABILITY UNDER THIS SECTION 10 EXCEED THE CAP ON LIABILITY SET FORTH IN SECTION 9. THIS SECTION STATES FINALIST’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. Finalist will have no obligation under this Section 10.1 with respect to any part of the Service that is in “beta”.


10.2 Customer’s Indemnity Obligations. Customer agrees to (a) defend Finalist against any claim based on a Customer Indemnity Responsibility or any Customer use (including hiring and firing decisions) of any output (including Customer Content and Candidate Assessments) from any Services, and (b) pay any damages awarded therefore or settlement amounts agreed by Customer, provided that Finalist promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against Finalist unless such settlement completely and forever releases Finalist from all liability with respect to such claim or unless Finalist consents to such settlement, and further provided that Finalist will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

 

  1. TERM AND TERMINATION.


11.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and will continue until terminated in accordance with this Section 11.  Either Party may terminate this Agreement by giving the other Party thirty (30) days notice.


11.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.


11.3 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.


11.4 Effect of Termination. Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the Services and any Finalist Confidential Information; and (iii) promptly pay to Finalist all amounts due and payable under this Agreement.


11.5 Survival. The provisions of Sections 2.4, 4, 5.1, 6 – 10, 11.4, 11.5, 11.6 and 12 will survive the termination.


11.6 Suspension of Services. If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof, Finalist shall have the right, in addition to any of its other rights or remedies, to suspend the Services to Customer, without liability to Customer until such amounts are paid in full.

 

  1. MISCELLANEOUS.


12.1 Entire Agreement; Amendments. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms and conditions in Customer’s preprinted purchase order or order documentation shall be incorporated into the Agreement. In the event that here is a conflict between an Order Form and this CSA, this CSA shall prevail. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.


12.2 Independent Contractors. In making and performing this Agreement, Customer and Finalist act and will act at all times as independent contractors, and, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.


12.3 Notices. Any notice required by or relating to this Agreement must be in writing and delivered by registered or certified mail, return receipt requested, reputable overnight courier, or personal delivery to the Parties at their respective addresses set forth in the Order Form. Notice shall be deemed received on the date of delivery shown by the corresponding confirmation. A Party may change its address for notification by notifying the other Party in accordance with this paragraph. Any notice required by or relating to this Agreement may also be communicated by email, provided that the sender receives confirmation of the sent email. Such notices will be deemed delivered on the date indicated in such confirmation. For any notice sent by email in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice by means of registered or certified mail or reputable overnight courier.


12.4 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Finalist, and any attempted assignment or delegation absent such consent will be null, void and of no effect. Finalist may assign this Agreement in its discretion.


12.5 No Third Party Beneficiaries. This Agreement does not create any rights for any person who is not a party to it, and no such person may enforce any of its terms or rely on any limitations or exclusions contained in this Agreement.


12.6 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability, and the validity of the remaining parts of the Agreement will not be affected.


12.7 Waiver. Failure to enforce a provision of this Agreement shall not constitute a waiver.


12.8 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure or delay of internet, electronic communications or public utilities, such failure or delay will not be deemed to constitute a material breach of this Agreement.


12.9 Governing Law. This agreement will be governed by and interpreted in accordance with the laws of the State of New York, without regard to conflicts of law principles thereof or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Colorado.


12.10 U.S. Government End-Users. Each software component of the Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Services with only those rights set forth therein.

 

This Customer Service Agreement was last updated August 2017.
Finalist, Inc. | 370 Lexington Ave. Suite 906, New York, NY 10017