• License Subject to the terms and conditions contained herein and to any exhibits hereto, Licensor hereby grants to Licensee, and Licensee hereby agrees to accept from Licensor, for the benefit of Licensee, a limited, non‑exclusive non-transferable, perpetual, and royalty free license to use and operate Licensor’s proprietary and Licensor hosted online software Subscription, vCandidates.com (referred to herein as the “Software Subscription”), via a web browser for the purposes and uses as set forth herein. This license shall include Licensee’s right to all upgrades, modifications, enhancements and new releases for the Software Subscription (collectively referred to herein as “Upgrades”). All such Upgrades shall be included in the term “Software Subscription” for purposes of this Subscription. Licensor owns all title in the Software Subscription and accompanying printed materials. Licensee obtains no rights related to the Software Subscription other than the license granted pursuant to this Subscription. Licensee acknowledges and agrees that the Software Subscription is proprietary and remains the property of Licensor. Licensor will host and retain physical control over the Software Subscription and under no circumstances will Licensor deliver or otherwise make available to Licensee copies of any computer programs or code from the Software Subscription. Licensee agrees not to disclose the confidential aspects of the Software Subscription consistent with the provisions of paragraphs 9 and 10 below, and agrees not to remove any of Licensor’s product identification or trademark, copyright or proprietary notices from the Software Subscription.

 

• Initial Term The initial term of this Subscription shall be either one month, three months or yearly dependent upon the product ordered. All products renewal automatically at the end of each term for the same length of time as originally subscribed to, unless notice of cancelation is otherwise provided as noted in section 9, Termination.

 

• Fees (a) In exchange and consideration for the license grant and other services set forth in this Subscription, Licensee shall pay to the Licensor the fees identified on Subscription Page of their choice listed on vCandidates.com hereto. Monthly invoices will be paid using a credit card in the amounts due and owing to Licensor, and if the credit card is declined, Licensee must provide another form of payment within three (3) days of the original invoice date.
  (b) Licensee shall provide Licensor with accurate and complete billing and contact information including Licensee’s name, any authorized user’s names, street address, e-mail address, and telephone number. Licensee agrees to update this information within fifteen (15) days of any changes to the billing and contact information.
  (c) If any amounts remain due and outstanding three (3) days after the date of the invoice, Licensor shall revoke the license granted herein, prohibit Licensee from accessing the Software Subscription and terminate this Subscription. The license may be reinstated, at the sole discretion of Licensor, prior to the expiration of the contract term and shall not be reinstated unless and until the outstanding balance due and owing is paid in full. Licensor may impose a charge to retrieve and restore archived data from delinquent accounts. Licensee shall pay all expenses of collection of unpaid amounts, including attorneys’ fees and costs.
• Software Subscription (a) There may be maintenance of the Software Subscription from time to time from Licensor but it will not be will be nothing required Licensee’s computer system(s). Licensee is solely responsible for maintaining and updating all information within online profile they create. Licensor will not modify profile information.
  (b) Licensor shall offer Licensee access to dashboard, vUniversity and mobile application upon purchase of Subscription. This includes any and all features that are included in the various Candidate or Recruiter Subscription offerings on vCandidates.com.

 

• Services, Training, Support and Upgrades (a) Licensee is solely responsible for saving the most updated contact and profile data in the Subscription Account

(b) Licensor shall provide to Licensee tutorial videos to instruct licensed users in the use of the Software Subscription at no charge to Licensee. If additional training is requested by Licensee, Licensee may seek the assistance of a vCounselor.  vCounselors will only provide review of Profile and make suggestions. It is not the responsibility of vCounselors to create or update Licensee’s data.
(c) Licensor shall provide Licensee with the technical support services necessary for Licensee to have full use of the Software Subscription. Technical support is available by email support@vcandidates.com during normal business hours, from 9:00 am – 5:00 pm CST, Monday – Friday on non-holidays.
(d) Licensor shall provide Licensee with any and all Upgrades made by Licensor pertaining to the Software Subscription at no additional charge. Upgrades are defined as enhancements to the modules the client has purchased and are licensed to use. All new Upgrades shall be considered integral to the Software Subscription and Licensee shall not be permitted to reject any Upgrades. Licensor shall provide any documentation and instructions necessary for the use of the Upgrades.

 

• Warranties (a) Licensor expressly warrants that:

1. It has the right and power to enter into and fully perform this Subscription which will constitute a binding obligation on it in accordance with the terms and conditions stated in this Subscription;

 

1. It is the owner of the Software Subscription and has full right, title and interest necessary to grant the license herein granted;

 

• It will use commercially reasonable efforts to promptly correct any failure to so perform that is accurately described in a written report submitted by Licensee to Licensor;

 

1. The Software Subscription shall not contain any software routine, code, or instruction, component or combination of the foregoing which permits unauthorized access to Licensee’s IT network or malicious code which can disable, delete, modify, damage or erase software or data;

 

1. The Software Subscription has received all required third party approvals, consents, permits, authorizations etc., including without limiting the foregoing, all requisite approvals from all regulatory or governmental agencies to allow the parties to enter into and perform this Subscription and use the Software Subscription as intended;

 

1. The Software Subscription does not and shall not infringe the patent, copyright or other proprietary or intellectual property rights of a third party;

 

• It will comply with all applicable federal, state and local laws and regulations that govern the performance of its obligations under this Subscription, including laws and regulations governing export control, data security, and data privacy; and,

 

• The services performed will be performed in a timely, competent, professional and workmanlike manner by qualified personnel, and with respect to those services that require the exercise of professional skill or judgment, by professionals qualified and competent in the applicable discipline and in accordance with the services herein.

(b) Licensor DOES NOT warrant or represent that the Software Subscription will be available without interruption or that the Software Subscription will be error free. Any materials obtained or downloaded through the use of the Software Subscription are obtained at the Licensee’s risk and Licensee will be solely responsible for any damage to its computer system or network, or for any loss of data that results from the use of the Software Subscription.
(c) Licensee warrants that:

1. It has full right and power to enter into and fully perform this Subscription, which will constitute binding obligations on it in accordance with its terms;

 

1. It is not and will not be in breach of any contractual or other obligation or duty of confidence to any third party resulting from such conflict with its obligations of performance in accordance with the terms and conditions stated in this Subscription;

 

• It will not copy, modify, merge or transfer copies of the Software Subscription;

 

1. It will not reverse assemble, reverse engineer, reverse compile, or otherwise disassemble the Software Subscription;

 

1. It will not sublicense, rent, lease, assign, or disclosure the Software Subscription or any copy thereof, or any Subscription with respect thereto, to any third party, including any affiliate of Licensee;

 

1. It will comply with all applicable federal, state and local laws and regulations that govern the performance of its obligations under this Subscription, including laws and regulations governing export control, data security, data privacy, unfair competition, anti-discrimination and false advertising;

 

• It will not use the Software Subscription for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list;

 

• It will not transmit, or permit users to transmit, any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material through the Software Subscription;

 

1. It will protect the confidentiality and trademark of the Software Subscription and will not copyright or develop any code which violates such copyright; and,

 

1. It will defend, indemnify and hold Licensor harmless against any claim or action that arises from Licensee’s use of the Software Subscription in an unlawful manner.

(d) A violation of any of the foregoing representations, warranties and covenants shall be considered a material breach of this Subscription.

 

• Limitations on Use Licensor hereby grants Licensee the right to use and operate the Software Subscription by approved licensed users. Only Licensee and approved licensed users may use and operate the Software Subscription licensed herein. The Software Subscription shall not be operated by unauthorized or unapproved users without Licensor’s express written consent prior to use. Additional licenses may be obtained from Licensor at the sole discretion of Licensor for an additional fee.

 

• Intellectual Property Rights Licensor shall own and retain all rights, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other intellectual and industrial property rights of any sort) in and to any and all custom and unique work product created, designed or provided by Licensor to Licensee, including, but not limited to, documentation, code, scripts, directories, databases, reporting forms, consultant tools, modifications, reports and any other software products, that Licensor owns prior to and after the date this Subscription is executed or that is developed in the course of this Subscription. The work product of Licensor may not be copied, printed, emailed, shared, distributed or developed in any manner except as necessary to use the Software Subscription as provided herein. Licensee shall not directly, or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software Subscription; shall not modify, translate, or create derivative works based on the Software Subscription or authorize any third party to do so; shall not rent, lease distribute, sell, resell, assign, or otherwise transfer rights to the Software Subscription; shall not use the Software Subscription for timesharing or service bureau purposes or otherwise for the benefit of a third party; shall not obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software Subscription or the related documentation; and, shall not send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Licensor shall have exclusive ownership of all ideas, techniques, methodologies, skills, procedures, innovations, and intellectual knowledge or know-how of the Software Subscription except to the extent the same are not a part of the Confidential Information or are not otherwise the property of a third party. As the Software Subscription is proprietary, Licensee agrees not to publish or disclose to any third parties any evaluations of the Software Subscription without the written consent of Licensor.

 

• Termination In addition to any right to terminate this Subscription stated above, this Subscription may be terminated as follows:
  (a) Either party may terminate this Subscription for any reason by providing the other party seven (7) days notice and/or before the next billing cycle or renewal term of the Subscription;
  (b) Should Licensee cancel this Subscription prior to the expiration of the initial or renewal term, Licensee shall be responsible for the full monthly fees due and payable hereunder through the end of the initial term.
  (c) In the event either party materially breaches this Subscription by failing to perform an essential element of the Subscription, and the breaching party fails to cure the breach within 30 days after written notice of the breach is provided to the breaching party, the non-breaching party may terminate this contract by delivering a written notice of termination to the breaching party. Termination of the contract shall not waive any other rights or remedies that the non-breaching party may have hereunder and shall not prejudice any of the rights or remedies the non-breaching party may have at law or in equity.
  (d) Upon the termination of this Subscription, Licensee must immediately cease using the Software Subscription and any downloaded documents, images, or other proprietary data obtained via the Software Subscription.
• Limitation on Liability. Notwithstanding any provision contained herein to the contrary, Licensor’s liability for damages relating to or arising from a dispute or claim related to this Subscription, including claims for liability, breach of contract, breach or warranty, or negligence, shall not exceed the aggregate amount of the payments paid by Licensee to Licensor prior to the dispute or claim during the twelve (12) month period preceding the date such claim is made. In no event will either Party be liable to the other Party for indirect, incidental, exemplary, special or consequential damages, including without limitation damages for the loss of profits or revenue, loss of savings, loss of use or loss of data, or inaccuracy of data, regardless of the form of action, whether in contract, tort or otherwise and even if such party is advised of the possibility of such damages. Prior to initiating a lawsuit to recover damages relating to or arising from a dispute or claim related to this Subscription, the parties agree that they will participate in a pre-suit mediation, in a good faith attempt to resolve the claim, as a condition precedent to filing a lawsuit.

 

• Force Majeure If either party shall be delayed in its performance of an obligation hereunder or be prevented from performing any obligation due to causes or events beyond its control, including without limitation any Act of God, fire, strike, or other labor problem, legal sanction, present or future law, government order, rule or regulation, such non-performance or delay shall be excused and the time for performance shall be extended to include the period of such delay or nonperformance.

 

• Severability If any provision of this Subscription is found or declared by a court of competent jurisdiction to be unenforceable for any reason, such declaration of finding shall not affect the remaining provisions of this Subscription, which shall remain in full force and effect.

 

• Assignment Neither party shall have the right to assign or otherwise transfer this Subscription or delegate the obligations of the Subscription hereunder without the other Party’s prior written consent.

 

• Governing Law This Subscription will be governed by and construed in accordance with the laws of the State of Arizona, without regard to the conflicts of law provisions thereof. Should any party institute any action or proceeding to enforce any provision of this Subscription; for any damages by reason of default under any representation; warranty or covenant set forth in this Subscription; for a declaration of such party’s rights or obligations under this Subscription; or, for any other judicial remedy, venue shall lie in Maricopa County, Arizona and the prevailing party shall be entitled to all reasonable attorneys’ fees and costs incurred in the action.

 

• Entire Subscription This Subscription constitutes the entire Subscription between Licensor and Licensee with respect to its subject matter and any prior representations, understandings or Subscriptions between the parties subject to Subscription are hereby superseded in their entirety by this Subscription. Licensor and Licensee acknowledge that they have read this Subscription, have had the opportunity to consult with counsel, and intend to be bound by the Subscription.
• Modifications This Subscription may be modified or amended in which the Licensee will be immediately notified of any modifications or amendments or in any way altered unless the modification is agreed upon by both parties and the modification via email, or notifications on the vCandidates.com Dashboard. Licensee will have to agree to the modifications or agreements in order to have continued use at that time.

 

• Notices Except as otherwise specified in this Subscription, all notices, requests, consents, approvals and other communications required or permitted under this Subscription shall be in writing and shall be deemed to have been given if delivered by hand or mailed by United States first-class certified mail, return receipt requested, Federal Express, courier service, facsimile, or email, with a confirmation of such notice provided hereafter in writing, to the address(s) specified.