TALYTICA TERMS AND CONDITIONS

 

  1. SAAS SERVICES AND SUPPORT

 

    1. Subject to the terms of this Agreement, Talytica will use commercially reasonable efforts to provide Customers with employment assessment and analytics services (“the Services”). As part of the registration process, Customer will identify an administrative user name and password for Customer’s account.
    2. Subject to the terms hereof, Talytica will provide Customer with reasonable technical support services in accordance with Talytica’s standard practice.
  1.  RESTRICTIONS AND RESPONSIBILITIES
    1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Talytica or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any logos, trademarks, services marks or names, or any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Talytica hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
    2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Talytica’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Talytica against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Talytica has no obligation to monitor Customer’s use of the Services, Talytica may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
    3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
  1.  CONFIDENTIALITY; PROPRIETARY RIGHTS
    1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Talytica includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Talytica to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
    2. Customer shall own all right, title and interest in and to the Customer Data. Talytica shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property and trade secret rights related to any of the foregoing, including but not limited to all Talytica copyrights, logos, trademarks, service marks and names.
    3. Notwithstanding anything to the contrary, Talytica shall be granted a limited license to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Talytica will be free (during and after the term hereof) to (i) collect, process, store, use, generate and display such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Talytica offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
  1.  PAYMENT OF FEES
    1. Customer will pay Talytica the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Talytica reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Talytica has billed Customer incorrectly, Customer must contact Talytica no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Talytica’s customer support department.
    2. Talytica may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Talytica within thirty (30) days after the date of the invoice. Unpaid amounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. The fact that Talytica does not charge interest on one or more occasions does not mean Talytica cannot charge it at a later time. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Talytica’s net income.
  1.  TERM AND TERMINATION
    1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. Upon termination of the term, all services shall cease immediately, and Talytica will prepare a final invoice for all fees incurred prior the effective date of the termination.
    2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
  1.  WARRANTY AND DISCLAIMER

Talytica shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Talytica or by third-party providers, or because of other causes beyond Talytica’s reasonable control, but Talytica shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Talytica does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and Talytica disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

  1.  LIMITATION OF LIABILITY
    1. Notwithstanding anything to the contrary, Talytica and its suppliers (including but not limited to all technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error, interruption of use, slow performance, loss or inaccuracy or corruption of data, or cost of procurement of substitute goods, services or technology; (b) for any indirect, exemplary, incidental, special or consequential damages, including but not limited to loss of profits, loss of business, or anticipated profits arising from or in connection with the use, delivery, performance, or non-performance of any services to be provided under this Agreement; (c) for any matter beyond Talytica’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to Talytica for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not Talytica has been advised of the possibility of such damages.
    2. The Assessments available from Talytica have been developed by Talytica or by third party developers (including but not limited to Mercer Systems, Inc.). Assessments are not intended  to provide the Customer with a hire or don’t-hire, pass or fail, and/or consider or don’t consider recommendation.  Customer agrees to comply with all applicable laws and regulations in making its hiring and other employment-related decisions. Customer agrees that both Talytica and its third party developer(s) assume (a) no responsibility or liability for any decisions the Client makes on any job applicant, and (b) no responsibility or liability on any decisions the Client makes which might violate applicable laws, regulations, guidelines, and rules. Client agrees and acknowledges that it has not received any ownership interest whatsoever in the Assessments or any of its related intellectual property rights as a result of this Agreement or its use of the Assessments. Client acknowledges that the developer(s) of the Assessments are the sole owner(s) of all rights relating to the Assessment at all times during the term of this Agreement.
  1.  MISCELLANEOUS
  1. Severability.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
  2. Modification.  This Agreement, and any Order Forms thereto, may only be modified in a written document signed by the parties.
  3. No waiver of any of the provisions of this Agreement will be effective unless made in writing and signed by the waiving party or will be construed as a waiver of any subsequent breach or as a continuing waiver of such breach of this Agreement.
  4. This Agreement is not assignable, transferable or sublicensable by Customer except with Talytica’s prior written consent. Talytica may transfer and assign any of its rights and obligations under this Agreement without consent.
  5. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
  6. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Talytica in any respect whatsoever.
  7. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
  8. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  9. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
  10. Talytica is not liable for any delays resulting from circumstances or causes beyond Talytica’s reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
  11. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Talytica to serve as a reference account upon request.
  12. Authority.  Each Party possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder.
  13. Amendments.  This Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both Parties.
  14. Injunctive Relief.  In the event Customer is in breach, or threatens to breach any covenants, of this Agreement, Customer acknowledges and agrees that Talytica will be greatly damaged, and that such breach will be irreparable and the resultant damages difficult to quantify; therefore, Talytica may apply to any court of competent jurisdiction to determine whether relief shall be granted to Talytica for injunctive or other equitable relief to restrain such breach or threat of breach, without impairing, invalidating, negating or voiding Talytica rights to relief.
  15. Compliance with Laws.  Each Party shall comply with all applicable laws, ordinances, rules and regulations of governmental authorities.
  16. Precedence.  In the event a conflict exists between this Agreement (including these Business Terms, the Privacy Policy and the Services Provider Agreement) and any exhibit, addendum hereto, this Agreement shall govern.
  17. Publicity.      Talytica and Customer may use, with prior written consent from both Parties, which consent may not be unreasonably withheld, the name of Talytica or the Customer and each Parties’ logos in lists of vendors, suppliers or customers and other marketing materials; refer to Talytica or the Customer in new vendor or customer announcements or press releases and identify Talytica or Customer describing Customer’s use of the Services.
  18. Entire Agreement.  This Agreement(including these Business Terms, the Privacy Policy and the Services Provider Agreement together with all exhibits and addenda incorporated herein) sets forth the entire understanding between the Parties, and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this Agreement.
  1.       DISPUTE RESOLUTION

Talytica and Customer shall arbitrate any dispute resulting from or related to this Agreement.  Any such arbitration shall be in accordance with the commercial rules of Judicial Arbitration and Mediation Services (“JAMS“) in effect at the time the dispute is filed, except to the extent such rules conflict with this Agreement.  The cost of the arbitration will be borne equally by the Parties.  Any such arbitration shall be held in Los Angeles, CA and directed by JAMS. Notwithstanding the foregoing or the then-current specified commercial rules of JAMS, the following shall apply with respect to the arbitration proceeding:  (a) the arbitration proceedings shall be conducted by one (1) arbitrator selected by the parties, provided that, if the parties fail to make such designation within five (5) days after receipt by JAMS of the demand for arbitration, JAMS shall make the appointment in its sole discretion of an arbitrator with a minimum of ten (10) years experience and knowledge of ASP agreements); (b) the arbitrator will apply California law and will have no power to alter any provision of this Agreement nor to determine any matter, except as provided in this Section 8.  The arbitrator will not be bound by legal rules of procedure, and may receive evidence in any manner designed to achieve an equitable result for the Parties; and (c) the existence, subject, evidence, proceedings and rulings resulting from the arbitration proceedings shall be deemed Confidential Information, and shall not be disclosed by either Party, their representatives, or the arbitrator, except:  (i) to the professional advisors of each of the Parties; (ii) in connection with a public offering of securities of either of the Parties; (iii) as ordered by any court of competent jurisdiction; or (iv) as required to comply with any applicable governmental statute or regulation.  All offers, promises, conduct, and statements, whether written or oral, made in the course of negotiation or arbitration hereunder are confidential.  Either Party may seek equitable relief in arbitration prior to arbitration on the merits to preserve the status quo. The Parties hereto hereby waive their respective right to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by any Party against another on any matter whatsoever relating to, resulting from, arising out of, or in any way connected with this Agreement, or any amendment or breach hereof, including, without limitation, any claim or injury or damage, or the enforcement of any remedy under any law, statute, or regulation, emergency or otherwise, now or hereafter in effect.