MASTER SERVICE AGREEMENT
Spothook, LLC ("Spothook") a Connecticut corporation located at 846 East Street North, Suffield CT 06078, offers Services (defined below) through its proprietary Platform (defined below). Spothook hereby agrees to provide its Services to the Buyer identified on a Service Order (defined below) executed in connection with this Master Service Agreement, who desires to subscribe to and use Spothook Services in accordance with the terms and conditions set forth in this Master Service Agreement ("Agreement"). Buyer and Spothook are referred to herein each individually as a "Party" and collectively as the "Parties".
- "Authorized Users" means those individuals designated by or invited by Buyer, in accordance with this agreement, to use the Services.
- "Buyer Content" means all content created by or provided by Buyer or its Authorized Users and submitted to the Platform.
- "Documentation" shall mean the descriptions of the Spothook Services.
- "End User" means a user of the Platform that responds to requests from Buyer or its Authorized Users through the Platform.
- "Platform" means the Spothook team acceleration platform including any related mobile applications, used to deliver the Services, features and functionality described in the Documentation.
- "Responses" means all responses to Buyer Content submitted to the Platform by End Users.
- "Scheduled Downtime" means the following Scheduled Downtime periods ("Maintenance Windows") currently reserved by Spothook, which may be changed from time to time on notice to Buyer: A maximum of four (4) hours per semi-monthly period between the hours of Midnight (12:00 A.M.) and 4:00 A.M. Eastern Time.
- "Services" means, collectively, the Platform and related services provided hereunder, including the features and functionality described in the Documentation, and any other professional services and customer support.
- "Service Order" means the document that specifies the Services to which the Buyer has ordered, the applicable term(s), and applicable fees.
- "Site Availability" means the percentage calculated by dividing (a) the Site Uptime by (b) the difference between the total amount of clock time and the Scheduled Downtime actually used by Spothook, in a given Month.
- "Site Uptime" shall mean the total time in a month during which all material parts of the Spothook website are operating properly and available for access and use by Authorized Users.
- "Unscheduled Downtime" means the number of seconds the Services are unavailable in a particular month which are due to (i) force majeure events beyond the reasonable control of Spothook or Spothook's service providers, or (ii) a general failure of the Internet.
- "Usage Data" means entirely anonymized data not attributable to any Authorized User, End User or Buyer which reflects data points such as volume of interviews and general patterns of use.
2.) Ordering, Services and Data.
- Buyer shall order Services by mutual execution of a Service Order which provides, at a minimum, the specific Services ordered and the price for such Services. The Service Order shall be incorporated into this Agreement by reference and in the event of a conflict between the terms of a Service Order and this Master Service Agreement, the terms of the Service Order shall prevail. Additional Services ordered in any subsequent Service Orders shall be governed by, and incorporated by reference into this Agreement.
- Spothook hereby grants to Buyer permission to allow Authorized Users to access and use the features and functions of the Spothook Services for which Buyer has paid all applicable fees for Buyer's internal business use.
- Buyer hereby grants Spothook permission to (i) reproduce, distribute, display and perform Buyer Content to Authorized Users and End Users in connection with providing the Services on behalf of Buyer, and (ii) to access and use the Responses ("Buyer Data") to provide the Services to and on behalf of Buyer.
- Buyer and Spothook acknowledge and agree that, as between Buyer and Spothook, Buyer Data is the property of Buyer. Buyer shall be responsible to ensure the End User has given legally sufficient consent for Buyer's collection, retention and use of their Responses. Spothook shall provide a mechanism in the Platform to collect such consent.
- Spothook collects and uses Usage Data for its internal research and development purposes and may disclose Usage Data in an aggregated format that in no way identifies Buyer or any particular Authorized User or End User.
- Except for the rights expressly granted herein, no other rights, are granted to Buyer under this Agreement, whether expressly, by implication, estoppel, or otherwise, and all rights not expressly granted herein are reserved by Spothook. All right, title and interest in and to the Services, any software used by Spothook in connection with the Services, and related documentation are and shall remain the exclusive property of Spothook and/or its licensors, and nothing herein grants to Buyer any right to access copies of any such software, whether in source or object code form. Buyer acknowledges and agrees that: (i) the Platform, any software used in connection with the Services and related documentation are protected under U.S. and foreign copyright and other intellectual property laws; (ii) Spothook and its licensors retain all copyrights and other intellectual property rights in the Platform, any software used in connecting with the Platform and related documentation; and (iii) Buyer acquires no ownership in or to the Platform, software, data, or related documentation.
3.) Fees and Payment.
- Fees for Services are paid in advance, unless Spothook and Buyer agree in advance to other payment terms and any undisputed invoices are not paid when due, Spothook reserves the right to suspend access to the Services until payment is current. Except as expressly provided herein all amounts paid hereunder are final and non-refundable.
Unless otherwise stated in a Service Order, Spothook's fees include state of Connecticut sales tax but no other taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Buyer is responsible for paying all Taxes associated with its purchases hereunder, other than direct taxes on the net income of Spothook. If Spothook has the legal obligation to pay or collect Taxes for which Buyer is responsible under this paragraph, the appropriate amount shall be invoiced to and promptly paid by Buyer, unless Buyer provides Spothook with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.) Term, Termination, and Expiration of Agreement and Renewal.
- The term of this Agreement shall commence upon execution of this Agreement ("Effective Date") and shall continue until Buyer notifies Spothook that it no longer requires any of Spothook's services.
- This Agreement may be terminated by either party upon 60 days' prior written notice in the event of a material breach by the other party that is not remedied within 60 days of such notice. With regard to such termination (i) if Buyer validly terminates this Agreement on the grounds of a material breach by Spothook, Spothook shall, issue a refund for the pre-paid amount of any unused Services within 60 days of the Buyer's written request and (ii) if terminated for any other reason, Buyer shall remain obligated to pay any remaining amounts owed under the Agreement.
- Upon any expiration or termination of the Agreement, Buyer will cease all use of the Services and destroy all copies Documentation (if any) that are in Buyer's possession or under Buyer's control. Upon termination or expiration of the Agreement or a specific Service Order, Buyer shall have the following options with regard to Buyer Content and Buyer Data related to each of the terminated or expired Services: 1) if Buyer requests in writing, on or prior to the date of such termination or expiration, Spothook shall provide Buyer with a copy of the Buyer Data stored on Spothook servers, and Spothook shall then delete all such Buyer Data from Spothook servers; 2) Spothook shall purge remaining Buyer Content and Buyer Data from the Spothook servers, and Spothook shall have no further responsibility to retain copies of Buyer Data. The parties agree and acknowledge that the foregoing requirement does not apply to Analytical Data to the extent it does not contain or embody Buyer Data in a form that can be attributed to Buyer.
- Unless otherwise stated in a Service Order, the start date for Services purchased under this Agreement shall be the date Buyer is provided login credentials for the Platform.
5.) Restrictions on Use.
Buyer shall not, and shall prevent its Authorized Users from using the Platform to: (i) resell, rent, lend, lease, distribute, or timeshare the Platform or otherwise use the Platform on behalf of any third party (including on a "service bureau" or similar basis), or otherwise provide third parties with access or grant third parties rights to the Platform other than as expressly permitted by Spothook, (ii) alter or remove any marks or proprietary legends contained in the Platform; (iii) circumvent or otherwise interfere with any authentication or security measures of the Platform; (iv) interfere with or disrupt the integrity or performance of the Platform; (v) send SPAM or any other form of duplicative and unsolicited messages, other than marketing and promotional messages to End Users as enabled by the intended features of the Platform; (vi) access all or any portion of the Platform by means of any crawler, scraper, bot, spider, or any other similar script or automated process; (vii) transmit through or post on the Platform unlawful, immoral, libelous, tortious, infringing, or defamatory material; or (viii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs. Buyer shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Platform, and shall not modify, translate, or create derivative works based on any element of the Platform.
6.) Buyer's Responsibilities.
- Buyer understands and acknowledges that Spothook is solely a technology platform provider and does not participate in the interview, selection, or hiring of candidates, which is Buyer's sole responsibility, notwithstanding use of the Service as a part of and in connection with such activities. Accordingly, it is Buyer's sole responsibility to comply with all applicable laws regarding its use of the Service and with the Buyer Content it presents to its Authorized Users and End Users, including without limitation all applicable employment and hiring laws and regulations and all record keeping and data protection regulations in connection with the collection, processing, disclosure, subject access requests, retention, and transfer of personally identifiable data under the laws of the country and any other local jurisdiction in which Buyer is operating or collecting and transferring personal data. Spothook shall have no liability related to the Buyer Content presented to Buyer's Authorized Users or End Users, or for record keeping requirements and data protection obligations applicable to Buyer unless expressly assumed by Spothook pursuant to this Agreement.
- Buyer is responsible for providing and maintaining adequate facilities, computer equipment, internet connections, connectivity and firewall access required for the use of the Services.
- Buyer agrees not to ask Respondents for, and to instruct Respondents not to provide, any PHI or SPI in any Responses. Should Buyer become aware that any PHI or SPI is provided by an End User in any Response, Buyer agrees to promptly notify Spothook and request redaction of such information from the interview or deletion of the interview where redaction is not feasible. As used herein PHI means Protected Health Information as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). SPI means Sensitive Personal Information consisting of date of birth, social security number, driver's license or other state-issued identification number, or financial account information.
- Buyer shall notify Spothook in the event of a subject access request (or equivalent request from Respondents) and provide Spothook direction with regard to correcting or deleting personal data in response to such requests made to Buyer. Spothook shall notify Buyer within five (5) business days if it receives any such subject access requests related to End Users and both parties shall cooperate to provide a response and take action in compliance with applicable legal requirements.
- Spothook shall provide the Services in a professional and workmanlike manner and in compliance with the Documentation in all material respects. In the event that Buyer notifies Spothook that the Services do not materially conform to the specifications set forth in such Service Order and the product documentation provided by Spothook, Spothook shall use commercially reasonable efforts to provide Buyer with support to address such non-conformity. EXCEPT AS EXPRESSLY SETFORTH HEREIN, THE SERVICES ARE PROVIDED "AS-IS" AND "WHERE-IS", AND Spothook MAKES NO OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, TO BUYER OR ANY OTHER PERSON OR ENTITY AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL SUCH IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE RESPONSES, METRICS, SCORES, AND ANALYTICS, INCLUDING BUT NOT LIMITED TO THOSE AS TO THE ACCURACY, SECURITY, RELIABILITY, PERFORMANCE, RESULTS, TIMELINESS, COMPLETENESS, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES, DELIVERABLES OR ANY INFORMATION PROVIDED IN CONNECTION THEREWITH, OR ANY SELECTIONS OR HIRING DECISIONS MADE BY BUYER IN CONNECTION WITH THE USE OF THE SERVICES OR OTHERWISE. Spothook DOES NOT WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE OR ERROR-FREE, AND MAKES NO RESPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINED FROM USE OF THE SERVICES.
- Spothook shall provide Buyer and the Authorized Users access to the Services at all times outside of Scheduled Downtime periods. Excluding Scheduled Downtime, Spothook guarantees a minimum Site Availability of ninety-nine percent (99.0%) during each month. Excluded from this Site Availability calculation shall be Unscheduled Downtime. However, Spothook and its service providers will use commercially reasonable efforts to provide and maintain the Services in accordance with the terms of the Agreement during such Unscheduled Downtime.
- Buyer understands and agrees that Buyer's download and/or use of any third party software or services (e.g. web browser or video plug ins) made available or required in conjunction with or through the Services is at Buyer's own discretion and risk and that Buyer will be solely responsible for any damages to Buyer's computer system or loss of data that results from the download or use of such third party software and services.
- Spothook shall not be liable to Buyer under any circumstances in which a third party mobile application host (i.e. Apple, Google, RIM, etc.) or a third party service provider (i.e. Verizon, ATT, Sprint, etc.) fails to provide continuous connectivity or other service required for download, communication, or other functionality of the Platform.
- Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to Buyer. Buyer may also have other rights that vary from state to state and jurisdiction to jurisdiction.
During the term of this Agreement, Buyer hereby agrees that Spothook shall have the right, but not the obligation, to list Buyer as a customer who uses the Services on the Spothook website and/or in presentations and link to Buyer landing pages. Spothook will remove Buyer's name from any such list within thirty (30) days after any termination of this Agreement or upon Buyer's request. Neither party may issue any press release concerning this Agreement without the other party's consent.
If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the
Agreement shall be valid and enforceable to the maximum extent possible.
10.) Indemnification and Limitation of Liability
- Spothook shall indemnify, defend and hold harmless Buyer and its affiliates and their respective officers, directors, employees, agents and contractors, from and against, and pay any costs, expenses and amounts finally awarded or agreed to in settlement of, any and all third party claims to the extent such claims are based upon (i) the gross negligence and/or willful misconduct of Spothook in performing this Agreement, (ii) any allegation that the software underlying the Platform, when used as provided and in accordance with the terms and conditions of this Agreement, infringes such third party's intellectual property rights, or (iii) Spothook's violation of applicable laws.
- Buyer shall indemnify, defend and hold harmless Spothook and its affiliates and their respective officers, directors, employees, agents and contractors, from and against, and pay any costs, expenses and amounts finally awarded or agreed to in settlement of, any and all third party claims to the extent based upon (i) the negligence and/or willful misconduct of Buyer or Authorized Users, or misuse of content, in connection with this Agreement, (ii) any allegation that the Buyer Data or other information or content provided by Buyer, or Buyer's alteration or combination of the Services with third party content, infringes such third party's rights, (iii) Buyer's violation of applicable laws, or (iv) Buyer's selection, handling or treatment of a Respondent relating to a job opening and the use of the tools and services made available by Spothook hereunder in connection with such process and any selection and hiring decisions and outcomes made by Buyer in connection with the use of the Services.
- In all requests for indemnification under Sections 12.1 and 12.2 above (i) the party seeking indemnification shall promptly provide the indemnifying party with written notice thereof and, at the indemnifying party's request and expense, reasonable cooperation, information, and assistance in connection therewith; and (ii) the indemnifying party shall have sole control and authority with respect to the defense, settlement, or compromise thereof, provided that it shall not settle any such claim without prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned, or delayed.
- IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS OR INCOME, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS ABOVE, Under no circumstances will either party TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT exceed THE GREATER OF (1) An AMOUNT EQUAL TO the fees PAID OR PAYABLE BY BUYER for the SERVICE ORDER(s) THE claims are BASED ON or (2) $50,000. Some states or other jurisdictions do not allow the exclusion of CERTAIN DAMAGES, so the above exclusions may not apply to BUYER. BUYER may also have other rights that vary from state to state and jurisdiction to jurisdiction.
11.) Independent Contractors.
Spothook and Buyer are independent contractors, and nothing in this Agreement shall be deemed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Neither Party is an agent or representative of the other nor is either Party authorized to, and shall not, make any warranties or representations or assume or create any other obligations on behalf of the other.
- Each party (each a "Discloser") agrees that, in the course of performing its obligations hereunder, either might provide to the other (the "Recipient") or develop information identified as confidential or that reasonably could be construed as confidential ("Confidential Information"). Spothook's Confidential Information shall include, but shall not be limited to, Spothook's trade secrets, know-how, user manuals and screens, service development plans, service specifications, computer programs, marketing plans, financial data, and Buyer's Confidential Information shall include, but shall not be limited to raw Buyer Data (excluding Analytical Data to the extent not embodying raw Buyer data), billing information, software, and systems. During the Term of this Agreement and at all times thereafter, the Recipient and its employees and agents shall maintain the confidentiality of the Confidential Information and not sell, license, publish, display, distribute, disclose or otherwise make available the Confidential Information to any third party nor use such Confidential Information except, in either case, as authorized by this Agreement or in connection with the performance or enforcement of this Agreement. The Recipient shall not disclose any such Confidential Information to persons not an employee or agent of Recipient nor to its Affiliates without the prior written consent of the Discloser. Any misuse or breach hereof must be reported promptly. Nevertheless and notwithstanding the foregoing statement, each party will attempt to comply with legally executed subpoena served upon such party.
- The non-use and non-disclosure obligations of this Section shall not apply to any information that (a) was already known to the Recipient at the time of disclosure, (b) was already in the public domain at the time of disclosure, or (c) was received or developed by the Recipient independent of any information received from the Discloser. Recipient may disclose information pursuant to a request under applicable law. Unless prohibited by law, if the information requested is Discloser Confidential information, Recipient shall notify Discloser of the request and give Discloser a reasonable opportunity to establish that the Discloser Confidential Information is exempt from disclosure under one or more exemptions under applicable law.
13.) Compliance with Laws.
The parties shall, in the performance of all obligations hereunder, fully comply with all applicable international, Federal, State and local laws, ordinances, treaties, rules, regulations, orders and policies applicable to or binding upon them.
14.) E-Business Activities.
Either party may use a third party service provider in connection with e-business activities (e.g., to route or translate EDI or XML messages, or to host web based services). The party contracting with a service provider must require that such service provider (a) use information disclosed to or learned by such service provider in connection with providing services solely for the purpose of providing the applicable services, and (b) not disclose such information to any third party. Each party will be liable for the acts or omissions of its service provider in connection with activities contemplated by this Agreement.
The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement will survive termination or expiration.
16.) Entirety of Agreement.
The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter of this Agreement. In no event will contractual terms inserted in a Buyer's purchase order be incorporated into or made a part of this Agreement.
17.) Force Majeure.
Except for any obligation to pay amounts due, either Party hereto will be temporarily excused from performance hereunder, in whole or in part, for any period of time that the Party is prevented from performing its obligations as a result of an act of God, governmental regulation or act, war, natural catastrophe, civil disobedience, court order, or other cause beyond the Party's reasonable control. Such non-performance will not constitute grounds for default.
18.) Governing Law.
This Agreement is made in accordance with and is governed and construed under The Laws of The State of Connecticut, without reference to such state's conflicts of laws principles. Buyer consents to the sole jurisdiction and venue of the state or federal courts of Connecticut for actions related to the subject matter hereof, to the extent permitted pursuant to the Section above, and irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar ground. The United Nations Convention on Contracts for the International Sale of Goods or the Uniform Commercial Code or similar statutes shall not apply with respect to this Agreement.
19.) Legal Advice.
Buyer acknowledges and agrees that Spothook has not and will not provide Buyer with any legal advice and specifically Spothook has not given legal advice regarding compliance with employment, data privacy, or other relevant laws, rules, or regulations in the jurisdictions in which Buyer uses the Services nor will Buyer construe any Spothook communications as legal advice. Buyer agrees that it is solely responsible for drafting and approving its own Buyer Content, including legal review as necessary.
20.) Arbitration. Except as set forth below, the parties shall settle any controversy arising out of this Agreement by arbitration in Connecticut in accordance with the Commercial Arbitration Rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award attorneys' fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. No arbitration or other action under this Agreement, unless involving death or personal injury, may be brought by either party against the other more than one (1) year after the cause of action arises.
Each party acknowledges that it has read and understands this Agreement, expressly agrees the signatory hereto has full power and authority to execute this Agreement, and agrees to be bound by its terms and conditions. Further, it represents that it has consulted, or has had the opportunity to consult with its legal, tax, and financial advisors in connection with the execution and performance of the Agreement. Buyer understands and agrees that except as expressly set forth in the Section above Spothook offers no buy-backs, money back guarantees, or refunds. Buyer acknowledges and agrees that Buyer is not relying upon any verbal or written representations whatsoever, except as expressly set forth in this Agreement. Buyer acknowledges and agrees that Spothook does not guarantee or represent that any software or services conveyed or provided hereunder, when or where accessed, used, provided, or installed, will guarantee any results.
22.) Updates and Modifications.
Spothook reserves the right at any time to modify this Agreement in Spothook's sole discretion without additional liability to BUYER. This Agreement, as amended, will be effective upon signing the Service Order for new users and effective for all existing users 15 days after the posting of any amended terms on the Spothook.com website. You agree to be bound by this Agreement, as modified. Please review the most current version of this Agreement from time to time, located at https://www.spothook.com/terms (or such successor URL as Spothook may provide), so that you will be apprised of any changes.