Employer Agreement

SERVICES AND DATA AGREEMENT

This JobScore Services and Data Agreement (the "Agreement") is made by and between JobScore, a Delaware corporation, and solely the individual executing this Agreement on behalf of the entity listed in the enrollment process ("Customer"). Customer must read this Agreement carefully. By clicking to accept, agreeing during the enrollment process, or otherwise using any portions of the services, data, or otherwise exercising any other rights under this Agreement, customer agrees to become a party to, and bound by, the terms of this Agreement.

I. DEFINITIONS

"Candidate" shall mean the individual represented by a Resume.

"Customer Resume" means a Resume that Customer has the right to submit to JobScore or otherwise create using the Services (directly or as provided by a Candidate of Customer), under the terms of this Agreement.

"Data" shall mean any information Customer and/or Candidate submits or creates through use of the Services.

"Documentation" shall mean JobScore’s online instructions and tutorials, reference material, or other product collateral if any, provided by JobScore for use with the Services.

"JobScore Resume" shall mean a Resume that is either presently in the JSN or comes to be in the possession of the JSN.

"JobScore Network" or "JSN" shall mean the total and composite database of Resumes and Data that JobScore has the right to use for its business purposes, including but not limited to, pricing, selling, sorting, bundling, organizing, and publishing.

"Resume" shall mean the document and/or information in any format which an individual shall use to represent his/her employment history, skills, interests, educational background, and other common items to a prospective employer or other individual or entity who wishes to review an individual’s career background.

"Services" shall mean the version of JobScore’s services for which the Customer is granted a license to access and use pursuant to this Agreement and the Documentation.

II. SERVICES AND DATA

2.1 Rights Granted. JobScore grants to Customer a limited, nonexclusive, and non-transferable license to access and use the Documentation and Services for Customer’s business purposes, subject to the use limitations specified or referenced in this Agreement.

2.2 Access. Customer agrees Customer is entirely responsible for maintaining the confidentiality of any password and account information that Customer may create now, or in the future. Customer agrees Customer is entirely responsible for any and all activities that occur under Customer’s account. Customer agrees to notify JobScore immediately of any unauthorized use of Customer’s account or any other breach of security. Customer agrees JobScore will not be liable for any loss that Customer may incur as a result of someone else using Customer’s password or account, either with or without Customer’s knowledge.

2.3 Services Limitations and JobScore Rights. Customer may not permit any other employee, contractor, or agent of Customer to access the Services, except for the individual accepting this Agreement. Customer may not relicense, rent, lease, or otherwise provide access to the Services, except as expressly permitted under this Agreement. Customer agrees not to cause or permit the reverse engineering, disassembly, or decompilation of the Services. Customer shall not use the Services in any way to design or develop competing services and/or software products or to create derivative works of the Services. Customer agrees to use the Services only in the manner intended and described by JobScore. JobScore and its licensors shall retain all title, patent, copyright, trademark, trade secret, and other intellectual property and proprietary rights in the Services, any modifications made to the Services, and in any derivative works. Customer does not acquire any rights, express or implied, in the Services or modifications thereto, other than those specified in this Agreement.

JobScore has the right, in its sole discretion, to (i) refuse or remove any Data that, in JobScore’s opinion, is inconsistent with the terms of this Agreement, violates any JobScore policy, and is in any way harmful or objectionable, and (ii) terminate or deny access to and use of the Services to any entity or individual. JobScore will have no obligation to provide any refund or other compensation towards any Credits.

2.4 Customer Representations. Customer agrees to only use the Services, Data, and Resumes for the internal employment purposes of Customer and not to distribute any Resumes or Data from the JSN to any third parties. Without limiting the generality of the foregoing, recruitment firms and services are not permitted to use the Services. Customer shall not sell any Data and/or Resumes. Customer agrees not to contribute Customer Resumes to any other commercial Resume vendor as long as this Agreement is in effect.

Customer represents that it has the right to provide Customer Resumes to JobScore for JobScore’s use under the terms of this Agreement. Customer agrees not to provide any information that is subject to any confidentiality, non-compete, or trade secret limitations or restrictions; infringes the intellectual property rights of any third party; immoral, obscene, vulgar, offensive, violent, threatening, abusive, harassing, discriminatory or racially, ethnically or otherwise objectionable; libelous or defamatory, or invades the privacy or publicity rights of others; violates any applicable local, state, national or international law, rule, or regulation; may constitute advertising, promotional material, "spam," or any other form of solicitation; contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or impair the functionality of the Services and any computer software or hardware or telecommunications equipment. In addition, Customer may not mine, harvest, spider, display, extract, or otherwise use any non-Customer Data.

Customer grants to JobScore the non-exclusive and perpetual right to use Customer Resumes and Data for JobScore’s business purposes, including but not limited to, storing Customer Resumes and Data, manipulating Data content, including parsing and de-duplication of Resumes, creating Candidate profiles and otherwise reformatting information. In addition, once a Customer Resume is no longer under active consideration for a job or the corresponding job has been filled, as reasonably determined by JobScore, JobScore may then sell, provide, and otherwise distribute the Data corresponding to such Resume to JobScore's other customers subject to and in accordance with JobScore's Privacy Policy, a copy of which can be found at http://www.jobscore.com/site/about_privacy_policy.

2.5 Fees. The Services are currently free. JobScore may, in its sole discretion, provide free credits for use in acquiring Resumes from the JSN that are valid for a specified period of time ("Free Credits"). Free Credits may be terminated by JobScore at any time. JobScore will offer paid-for credits in the future ("Paid-for Credits"). In the event JobScore desires to terminate any Paid-for Credits, JobScore shall refund the corresponding fees to Customer.

2.6 Privacy. Customer may view JobScore’s Privacy Policy at http://www.jobscore.com/site/about_privacy_policy, as amended from time-to-time, which is incorporated herein by reference. JobScore will not use Customer Resumes and Data in a manner that is materially inconsistent with the purposes and limitations provided in the Privacy Policy. If Customer believes that its (or any) copyright, trademark or other third parties rights have been violated, please notify legal (at) jobscore (dot) com and JobScore will investigate.

2.7 Referral Fees. The Services may include functionality for Customer and other JobScore customers to offer a referral fee to third parties ("Referrals"). Customer acknowledges that the facilitation of payment of the fees corresponding to Referrals is not the responsibility of JobScore and JobScore does not collect and/or distribute the corresponding fees. The payment and collection of Referrals is the sole responsibility of Customer and the applicable third-parties.

III. TERM AND TERMINATION

3.1 Term. This Agreement shall continue for a period of twelve (12) months from the date Customer accepts this Agreement ("Effective Date"), unless terminated under this Article III ("Term"). This Agreement shall automatically renew for an additional one (1) year periods ("Renewal Term"), unless one party gives notice to the other party of its desire to not renew, prior to the end of the Term or applicable Renewal Term.

3.2 Termination. Each party may terminate this Agreement for convenience upon five (5) days written notice to the other party. JobScore may terminate this Agreement immediately, in the event of a material breach of the Agreement by Customer.

3.3 Effect of Termination. The parties’ rights and obligations under Sections 2.3 and 2.5 and Articles IV and V shall survive termination of this Agreement. Upon termination, Customer shall cease using the Services, and shall return or destroy all copies of the Documentation. Upon termination of this Agreement by Customer, JobScore shall make reasonable efforts to forward a copy of the Customer Resumes, in a format determined by JobScore, within 30 days. For the purposes of clarity, JobScore shall continue to have the right to use Customer Resumes and Data for JobScore’s internal business, statistical, and summary purposes and shall continue to have the right to sell, distribute, sort, parse, bundle, publish, and otherwise use the Customer Resumes and corresponding Data. Any JobScore customer that previously received or purchased a Customer Resume or corresponding Data, shall be permitted to continue to use such Resumes and/or Data.

IV. INDEMNITY, WARRANTIES, REMEDIES

4.1 Customer will defend and indemnify JobScore against a claim by any third party, provided that: (a) JobScore notifies Customer in writing within thirty (30) days of the claim; (b) Customer has sole control of the defense and all related settlement negotiations; and (c) JobScore provides Customer with the assistance, information and authority necessary to perform Customer’s obligations under this Section. Customer will reimburse JobScore’s reasonable out-of-pocket expenses incurred in providing such assistance. Customer understands that third party unauthorized access to the Services could irreparably compromise Services and harm JobScore, and agrees that such damage may be without limit.

4.2 Warranties and Disclaimers.

THE SERVICES AND JOBSCORE RESUMES ARE PROVIDED "AS IS" AND THE REPRESENTATIONS PROVIDED UNDER THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, JOBSCORE DISCLAIMS THE QUALITY OR USEFULNESS OF ANY JOBSCORE RESUMES, REPORTS, OR OUTPUT FROM THE SERVICES, THAT CUSTOMER WILL RECEIVE JOBSCORE RESUMES THAT CUSTOMER WILL LIKE, AND/OR THAT A CANDIDATE WILL BE INTERESTED IN A CUSTOMER JOB; THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE AND THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SERVICES; AND/OR THAT DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THAT FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.

4.3 Exclusive Remedies. For any breach of the representations by JobScore contained in this Agreement, Customer’s exclusive remedy, and JobScore’s entire liability, shall be the correction of the problems that cause the errors, or if JobScore is unable to make the Services operate as represented, Customer shall be entitled to terminate this Agreement and recover a copy of Customer Resumes in accordance with Section 3.3.

4.4 Limitation of Liability. Excepting Section 4.1, in no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, Data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. Notwithstanding the foregoing, JobScore’s liability for damages hereunder shall in no event exceed fifty dollars ($50). The provisions of this Agreement allocate the risks between JobScore and Customer. JobScore’s provision of services reflects this allocation of risk and the limitation of liability specified herein.

4.5 Equitable Relief. Each party acknowledges that any breach of its obligations with respect to proprietary rights of the other party will cause the other party irreparable injury for which there are inadequate remedies at law and that JobScore shall be entitled to equitable relief in addition to all other remedies available to it.

V. GENERAL TERMS

5.1 Nondisclosure. By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Services, Documentation, JobScore Resumes, and all information clearly marked as confidential.

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party or (e) Customer Resumes.

The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of three years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party (except to each such party’s agents or independent contractors) for any purpose other than exercising its rights under this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, agents, or independent contractors in violation of the terms of this Agreement.

5.2 Governing Law/Jurisdiction. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California and shall be deemed to be executed in San Francisco, California. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in the County of San Francisco, California. JobScore and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

5.3 Notice. Customer agrees that all notices will be sent either to the email or postal address Customer has on file with JobScore. In either case, delivery shall be deemed to have been made five (5) days after the date sent. Notices from Customer to JobScore shall be made either by email, sent to info (at) jobscore (dot) com, or first class mail to JobScore’s address at: 575 Market Street, 8th Floor San Francisco, CA 94105.

5.4 Assignment. Customer may not assign this Agreement for any reason. Any such attempted assignment shall be null and void and a breach of this Agreement.

5.5 Independent Parties. The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the parties. Neither party shall have the right to obligate or bind the other party in any manner to any third party.

5.6 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

5.7 Force Majeure. JobScore will make reasonable efforts to keep the Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. JobScore shall not be responsible or liable for any of the consequences of such interruptions.

5.8 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

5.9 Export Administration. Customer agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Services nor any direct product thereof are exported or used, directly or indirectly, in violation of Export Laws.

5.10 Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.

5.11 Attorneys’ Fees. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees from the other party.

5.12 Execution and Authorization. Customer warrants and represents that the representative submitting or accepting this Agreement on its behalf has been duly authorized to do so by Customer.

SMASHFLY TERMS OF SERVICE

We (the folks at SmashFly Technologies) run an on-demand job distribution service. Our service is designed to give you as much control over how you post your jobs and to which job boards you wish to post to. Please make sure you read through the list and the rest of the terms and agree with them before you get started.

Terms of Service:

The SmashFly.com website ("Website") is a hosted service operated by SmashFly Technologies. ("SmashFly"). Any use of the Website is subject to the following Terms and Conditions of Use ("Terms and Conditions"), as well as to SmashFly’s Privacy Policy, all of which are incorporated by reference into these Terms and Conditions. Your use of the Website will constitute your acceptance of these terms and conditions.

1. Your SmashFly.com Account and Site. If you create an account on the Website, you are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with your account. You must not describe or assign keywords to your job postings in a misleading or unlawful manner and SmashFly may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause SmashFly liability. You must immediately notify SmashFly of any unauthorized uses of your account or any other breaches of security. SmashFly will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. SmashFly may also from time to time change its policies on offering commercial content or displaying advertising, and it may do this without notice. However, SmashFly may post web entries about its policy changes, and you may wish to check the SmashFly support site for SmashFly’s announcements about any such changes.

2. Responsibility of Contributors. If you post material to the Website, post links on the website, or otherwise make material available by means of the Website (any such material, "Content"), you are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:

1. the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;

2. if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;

3. you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;

4. the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;

5. the Content is not spam, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts or mislead recipients as to the source of the material (such as spoofing);

6. the Content is not obscene or libelous, and does not violate the privacy or publicity rights of any third party; and

7. you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by SmashFly or otherwise.

By submitting job postings to SmashFly for distribution to 3rd party job boards, you grant SmashFly a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your postings.

Without limiting any of those representations or warranties, SmashFly has the right (though not the obligation) to, in SmashFly’s sole discretion (i) refuse or remove any content that, in SmashFly’s reasonable opinion, violates any SmashFly policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in SmashFly’s sole discretion. SmashFly will have no obligation to provide a refund of any amounts previously paid.

3. Responsibility of Website Visitors. SmashFly has not reviewed, and cannot review, all of the material, including computer software posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, SmashFly does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. SmashFly disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

4. Content Posted on Other Websites. We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and web pages to which SmashFly.com links, and that link to SmashFly.com. SmashFly does not have any control over those non-SmashFly websites and web pages, and is not responsible for their contents or their use. By linking to a non-SmashFly website or webpage, SmashFly does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. SmashFly disclaims any responsibility for any harm resulting from your use of non-SmashFly websites and web pages.

5. Copyright Infringement and DMCA Policy. As SmashFly asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by SmashFly.com violates your copyright, you are encouraged to notify SmashFly in accordance with SmashFly’s Digital Millennium Copyright Act ("DMCA") Policy. SmashFly will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. In the case of a visitor who may infringe or repeatedly infringes the copyrights or other intellectual property rights of SmashFly or others, SmashFly may, in its discretion, terminate or deny access to and use of the Website. In the case of such termination, SmashFly will have no obligation to provide a refund of any amounts previously paid to SmashFly.

6. Trademarks. SmashFly, the SmashFly.com logo, and all other trademarks, service marks, graphics and logos used in connection with SmashFly.com, or the Website are trademarks or registered trademarks of SmashFly or SmashFly’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any SmashFly or third-party trademarks.

7. Changes. The Website, including without limitation all content there available and these Terms and Conditions, may be changed at the sole discretion of SmashFly and without notice. You are bound by any such updates or changes, including but not limited to those affecting these Terms and Conditions, and so should periodically review these Terms and Conditions.

8. Limitation of warranties of SmashFly, its suppliers and its licensors. Except as otherwise expressly stated, all content posted to or available from the Website is provided "as is", and SmashFly, its suppliers and its licensors make no representations or warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, title or non-infringement of proprietary rights. You understand and agree that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk, and that SmashFly, its suppliers and its licensors will have no liability or responsibility for any damage to your computer system or data that results from the download or use of such content or services. Some jurisdictions may not allow the exclusion of implied warranties, so some of the above may not apply to you.

9. Limitation of liability of SmashFly, its suppliers and its licensors. Except as otherwise expressly stated, in no event will SmashFly, its suppliers or its licensors be liable to you or any other party for any direct, indirect, special, consequential or exemplary damages, regardless of the basis or nature of the claim, resulting from any use of the Website, or the contents thereof or of any hyperlinked website including without limitation any lost profits, business interruption, loss of data or otherwise, even if SmashFly, its suppliers or its licensors were expressly advised of the possibility of such damages. In no event will the aggregate liability for any and all of your claims against SmashFly, its suppliers and its licensors arising out of or related to use of the Website, or the contents thereof or of any hyperlinked website exceed the amounts actually paid by you to SmashFly during the 12-month period prior to the date a claim is made. Some jurisdictions may not allow the exclusion or limitation of liability for certain incidental or consequential damages, so some of the above limitations may not apply to you. The parties agree that this Section 11 represents a reasonable allocation of risk.

10. General Representation and Warranty. You represent and warrant that your use of the Website will be in accordance with the SmashFly Privacy Policy, with these Terms and Conditions, with any applicable laws and regulations, including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, and with any other applicable policy or terms and conditions.

11. Indemnification. You agree to defend, indemnify and hold harmless SmashFly, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to out of your violation of any representation or warranty contained in these Terms and Conditions.

12. Miscellaneous. These Terms and Conditions constitute the entire agreement between SmashFly and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of SmashFly, or by the posting by SmashFly of a revised version. Except to the extent applicable law, if any, provides otherwise, these Terms and Conditions, any access to or use of the Website will be governed by the laws of the state of Massachusetts , U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Boston, Massachusetts. If any part of these Terms and Conditions is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under these Terms and Conditions to any party that consents to, and agrees to be bound by, its terms; SmashFly may assign its rights under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.