HOURLY CLOUD PLATFORM GENERAL TERMS & CONDITIONS

ALEXANDER MANN SOLUTIONS CORPORATION (“AMS”, “WE”, “US” OR “OUR”) HAS DEVELOPED AND DEPLOYS A CLOUD PLATFORM (“PLATFORM”) WHICH ENABLES AN ARTIFICIAL INTELLIGENCE POWERED CANDIDATE ATTRACTION SERVICE (INCLUDING AUTOMATED MESSAGING VIA SMS TEXT MESSAGE AND EMAIL).  THE PLATFORM IS ACCESSIBLE TO THE CUSTOMER IDENTIFIED ON THE ORDER (“CUSTOMER”, “YOU” OR “YOUR”) AND CANDIDATES VIA THE INTERNET.

PLEASE READ THESE GENERAL TERMS & CONDITIONS (“GENERAL TERMS”) CAREFULLY.  THESE GENERAL TERMS CONSTITUTE A BINDING CONTRACT ON YOU AND GOVERN ACCESS TO THE PLATFORM BY YOU AND BY YOUR AUTHORISED USERS.  THESE GENERAL TERMS INCORPORATE THE POLICIES.

TERMS RELATING TO END-USER CANDIDATES ARE FOUND HERE.

THESE GENERAL TERMS ARE SO IMPORTANT THAT WE CANNOT PROVIDE THE PLATFORM OR ANY SERVICES TO YOU UNLESS YOU AGREE TO THEM. BY ACCEPTING THE GENERAL TERMS, EITHER BY ACCESSING OR USING THE PLATFORM OR BY RECEIVING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE GENERAL TERMS AS OF THE START DATE.

A list of defined terms used in this Agreement are set out in Schedule 1 below.

OUR AGREEMENT:

1. Agreement & Definitions

  1. Agreement: The agreement (“Agreement”) between us is made up of the following documents: i) These General Terms; ii) The Order; iii) Each Assignment Order Form (including any special terms set out in each Assignment Order Form); and iv) The Policies.
    1. Priority: If there is any conflict between the provisions of the Agreement and/or the documents referred to in it, the following order of priority prevails (in descending order of priority):
      1. the Order Form;
      1. the Assignment Order Form(s);
      1. the General Terms; and
      1. the Policies.
    1. Definitions: Definitions used in this Agreement are set out at Schedule 1.

2. Access to the Platform & Services

  • Platform: Subject to acceptance of the Order Form, and for the duration of the Term, We grant to You a non-exclusive, non-assignable, non-sublicensable, royalty free, non-transferable, limited right to use the Platform in the Subscribed Territories for the Permitted Purpose.  With effect from the Start Date, we will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except during Permitted Downtime.
    • Services:  We will use reasonable endeavours to provide the Services identified in the Services Policy and/or the Assignment Order Form.  The Services do not include: i) any services, systems or equipment required to access the internet – You are solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Platform or receipt of the Services; ii) dedicated data back up or disaster recovery facilities – You should ensure that You at all times maintain backups of all Your Data; or iii) legal, accounting or other professional or regulated services.
    • Modification Of Platform: During the Term, We may, at Our absolute discretion and at such time as We think appropriate, modify the features and functionality of the Platform.

3. Use of the Platform & Services

  • Accessing the Platform:  Access to the Platform by You shall be browser-based via the internet or, subject to the terms of the Assignment Order Form, via an application interface set up by Us.  A high-speed Internet connection is required to use the Platform. You are responsible for procuring and maintaining the network connections that connect Your network to the Platform and to follow procedures for accessing services that support such protocols.
    • Upgrades/Performance:  We are not responsible for notifying You or any users of the Platform of any upgrades, fixes or enhancements to the Platform or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the internet) which are not owned, operated or controlled by Us. We assume no responsibility for the reliability or performance of any connections as described in this section.
    • Authorized Users
      • On each Assignment Order Form You will provide Us with a list of Your personnel who You wish to be Authorized Users.  As part of the Activation Services we will set up access permissions for each Authorized User. We reserve the absolute right to refuse to grant any individual access to the Platform.
      • The maximum number of Authorized Users shall not exceed the number specified in the Order and/or agreed in writing with You from time to time.  You may, from time to time during the Term, request (in writing) the addition of new/replacement Authorized Users, in addition to those set out in the relevant Assignment Order Form and We shall (at our absolute discretion) grant access to the Platform to such additional Authorized Users.
      • You shall immediately notify Us, in writing, if an Authorized User leaves your organisation and/or if an Authorized User no longer requires access to the Platform.  Notification is sent to Us using the details set out on the Assignment Order Form.
      • You will maintain a written, up to date list of current Authorized Users and provide the list to Us within five (5) business days of written request.
    • Access Keys:  If You share any password or access keys with any individual who is not an Authorized User, then We reserve the right to disable such passwords and/or access keys.  We will not issue any new passwords or access keys to any individual who has breached this clause 3.4.
    • APIs:  If APIs are made available without a separate license agreement, We hereby grant you a non-exclusive, non-sublicensable, non-transferable limited license to use the APIs exclusively and solely for the benefit of Your clients. You assume all liability as a result of any use of the APIs. We make no commitment to continued availability of APIs and You have no rights to version enhancement or support of any kind. We may revise or cease to provide APIs without notice at any time in Our sole discretion. NOTWITHSTANDING THE FOREGOING, COPYING OR REPRODUCTION OF THE APIS FOR FURTHER REDISTRIBUTION IS EXPRESSLY PROHIBITED.
    • Policies:  You and each Authorized User will comply with the terms of the Policies.
    • Compliance: You will comply, and you will procure that each Authorized User complies, with the terms of the Agreement, as may be updated from time to time by Us.  Without limiting the foregoing, You are solely responsible for ensuring that the use of the Platform to store and transmit Your Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with your agents or Candidates. You also maintain all responsibility for determining whether the Platform, the Services or the information generated thereby is accurate or sufficient for Your purposes.
    • Competitive Access:  You are not allowed use the Platform or receive the Services if you are a competitor of Alexander Mann Solutions Corporation (or any of its group, holding, parent or subsidiary companies or organisations).
    • Dependencies: You will supply Us with all information and assistance noted as being a “Customer Dependency” on the Assignment Order Form(s).  If you do not supply us with this information and/or such assistance We reserve the right to withhold access to the Platform and/or to withhold or cease performing the Services.
    • Audit:  During the Term You will allow Us or Our designated auditor to audit Your use of the Platform.  This right of audit may be exercised at any time and You agree to give Us access to your information and systems to enable us to perform the audit.
    • Law: You shall comply (and shall procure that all Authorized Users comply) with all applicable laws, rules, and regulations governing: i) export rules that apply to the Platform; ii) Your Data; and iii) which regulate Your use of the Platform and/or Services.
    • Infringement: You will not attempt to copy, modify, adapt, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or attempt to decode, de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or use the Platform to provide services to any third parties; or license or sell the Platform to any third party.
    • Services:
      • We reserve the right to have any of the Services performed by third parties (including Our affiliates) and subcontractors.
      • Any Services are provided on an “as is” basis (unless agreed otherwise on the Assignment Order Form) and no guarantee is given that such Services will meet your requirements.
    • Use of Platform:  We make the Platform available as software as a service, accessed via remote access. It shall not be made available to You for Your own permanent use or storage nor do You have the right to make it available itself or to use it in a data centre environment.
    • Updates/Upgrades: We will, at our absolute discretion, be entitled to update, bug-fix, patch, upgrade and/or maintain the Software and the Platform.

4. Term, Ordering Services and Termination

  • Term:  This Agreement starts on the Start Date and continues until the End Date or untilterminated in accordance with clauses 4.6 or 4.7.
    • Ordering The Platform: You can order access to the Platform by signing and submitting the Order.
    • Ordering Services: You can order Services from Us, on an assignment by assignment basis, by submitting Assignment Order Forms to us during the Term.  The Platform and the Services will not be provided to You unless an Assignment Order Form has been submitted by You and accepted by Us in writing.  The Assignment Order Form must reference the terms of the Agreement and shall include details of the Services ordered.
    • Cancellation Of Assignment Orders: 
      • We reserve the right (at our absolute discretion) to cancel any assignment (“Assignment”), as recorded on an Assignment Order Form, and the relevant Assignment Order Form, without any liability whatsoever, at any time prior to completion of the performance of the Services.
      • You are not entitled to terminate an Assignment (or accompanying Assignment Order Form) once it has been accepted by Us unless We accept to do so in writing.  Any cancellation of Assignment is subject to you paying any outstanding Charges as identified on the relevant Assignment Order Form.
    • Suspension:  We reserve the right to suspend and/or terminate an Authorized User’s use of the Platform where We reasonably believe (at our discretion) that the Authorized User is in material violation of this Agreement, any of the Policies and/or any applicable laws or governmental regulations. 
    • Termination For Convenience: Either Party may terminate the Agreement by giving the other at least 30 days written notice.  No new Assignment Order Forms shall be submitted after service of notice under this clause 4.6.  Termination of the Agreement shall also cause each Assignment Order Form to be terminated.
    • Termination For Cause: 
      • Any breach by You of any of the Policies is a material breach of the Agreement which (at our discretion) is not capable of remedy and which shall entitle Us to immediately terminate the Agreement without notice.
      • Either party may terminate the Agreement immediately at any time by giving notice in writing to the other party if: i) the other party commits a material breach of the Agreement and such breach is not remediable; or ii) the other party commits a material breach of our Agreement which is not remedied within 20 business days of receiving written notice of such breach; or iii)  the other party has failed to pay any amount due under our Agreement on the due date and such amount remains unpaid within 20 business days after the other party has received notification that the payment is overdue.
    • Consequences of termination:
      • Termination by either party shall be without prejudice to any other rights or remedies of the parties which exist prior to termination.  Termination shall not affect any clauses which are expressed to survive termination of the Agreement.
      • Immediately on termination of the Agreement (for any reason) the rights granted by Us under the Agreement shall immediately terminate and You shall (and, as appropriate, shall ensure that each Authorized User shall): (i) stop using the Platform; (ii) stop using the Services; (iii) pay any outstanding Charges; (iv) immediately, and at your cost, return all information, delete all data and/or return to us all assets which belong to Us.
      • On termination of the Agreement, we will use reasonable endeavours (but are not obliged) to provide the Exit Services specified in the Assignment Order Form and to send to you a copy of the Candidate Data.

5. Charges and Payment

  • Payment: You are required, as a condition of our Agreement, to pay the Charges set out in each Assignment Order Form and in accordance with the terms of the Assignment Order Form. 
    • Increases: We may increase the Charges specified in each Assignment Order Form at any time by notice to You provided that We will not increase the Charges on less than six (6) weeks prior notice or more than once every 12 months.
    • Taxes: Unless stated otherwise, our Charges do not include any taxes and you are responsible for paying all taxes.
    • Interest: Any Charges which remain unpaid after the due date  shall be subject to simple interest at a rate of 3% per annum above the base rate of the Bank of England, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
    • Service Credits: Unless agreed otherwise, there are no service credits payable by Us to You.

6. Intellectual Property

  • All Intellectual Property Rights in the Platform, the Software, the Candidate Data and/or any part of the Services belong to and remain vested in Us or the relevant third party owner.  We have no obligation whatsoever to deliver to You any copies of the Software or the Intellectual Property Rights in the Software or the Services.
    • You agree to waive (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Us under our Agreement.
    • This clause 6 shall survive the termination of the Agreement.

7.             Confidentiality & Ownership Of Data

  • Confidentiality: Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information: (i) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (ii) as necessary to comply with an Assignment Order Form; a subpoena of any administrative agency or court of competent jurisdiction; or (iv) as reasonably necessary to comply with any applicable law or regulation.
    • Your Data: You own Your Data.  You grant Us a royalty-free, non-transferable, non-exclusive, worldwide licence to use, copy and otherwise utilise Your Data and any feedback and suggestions for improvement relating to the Platform provided by You without charge or limitation.
    • Candidate Data: 
      • You own Candidate Data which relates to Candidates who are hired by You as a result of your use of the Platform.
      • In respect of Candidate Data relating to Candidates who are not hired by you, such Candidate Data is owned jointly and separately by both Parties.
    • Aggregation & Use Of Data:
      • Notwithstanding anything to the contrary, We shall have the right to collect, aggregate, anonymise, analyse and/or use (without limitation): (i) information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies; (ii) data gathered and/or stored as part of the Platform; (iii) data derived from Your Data (including data relating to any Candidates); and (iv) the Candidate Data relating to all Candidates (whether hired or not).
      • We are free to use such information and data (including Your Data and Candidate Data) to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other services or offerings.  If we disclose such data (including Candidate Data) we will do so solely in aggregated and anonymised form in connection.  No rights or licenses are granted except as expressly set forth herein.
    • Sale Of Data: We will not sell, rent or lease Your Data or the Candidate Data to any third party.

8. Privacy

  • The Parties will comply with the Privacy Policy, which can be found here.
    • You are responsible for determining whether the Platform and the Services are suitable for you to use in the context of all data protection laws and regulations which you are subject to.
    • In relation to Candidate Data provided or made available to You or created in connection with this Agreement:
      • We shall obtain and maintain all consents from each Candidate when and as required by Law; and
      • Both Parties shall, and shall procure that any employee, director, agent, independent contractor and subcontractor shall:
        • process the Candidate Data only to the extent reasonably necessary for the performance of the obligations under this Agreement;
        • take and implement all appropriate technical and organisational security procedures and measures to reasonably protect the security and confidentiality of the Candidate Data and prevent the unauthorised or unlawful processing of the Candidate Data and accidental loss or destruction of, or damage of such Candidate Data;
        • promptly notify the other Party of any material, actual, suspected, accidental or unauthorised access, disclosure, loss or use of Candidate Data;
        • treat Candidate Data as Confidential Information except to the extent such Candidate Data is in the public domain.
    • Technical Measures:  We shall at all times throughout the Term have in place and maintain appropriate technical and organisational measures against unauthorised or unlawful access to or processing of Candidate Data or Personal Data, and against accidental loss or destruction of or damage to Candidate Data or Personal Data, in line with Best Industry Practice and the Assignment Order Form.
    • Disclosure To Customer:  The Customer may request a written description of the technical methods engaged by the Us pursuant to clause 8.4 and We shall supply the written particulars within no more than ten (10) Business Days of the Customer’s request.

9. Authority, Warranties & Disclaimers

  • Authority:  Each party warrants to the other that it has the right, power and authority to enter into the Agreement and grant to the other the rights (if any) contemplated in the Agreement and to perform its obligations under the Agreement.
    • Our Warranties: We warrant that: i) We will use reasonable endeavours to provide you with access to the Platform during the Term;  and ii) We will use reasonable endeavours to maintain all necessary licences, consents and permissions necessary for the performance of Our obligations under the Agreement. 
    • :
      • : i) We will achieve full activation and/or integration of Your platforms and/or systems with the Platform; or ii) that Your use of the Platform or the Services will be uninterrupted or error-free or free from bugs or vulnerabilities or that We will be able to correct all errors; or iii) that the Platform, the Services, or the information obtained by You through the Services, will meet Your requirements or expectations.
  • , and that We shall have no liability for any such delays, interruptions, errors or other problems.
  • Any implementation services other than the Activation Services are outside the scope of this Agreement and require a separate written agreement between Us.
    • We do not guarantee that any Candidates who interact with you via the Platform will meet your requirements. We further do not warrant any results that may be obtained from the use of the Platform.
    • All warranties given by Us are subject to the limitation on liability at clause 11 and shall not apply to the extent of any error or non-conformance which is caused by: i) use of the Platform contrary to Our instructions or contrary to the purpose for which it is intended; or ii) modification or alteration of the Platform by any party other than Us or Our duly authorised contractors or agents; or iii) use of the Platform with other software or services; or iv) any act by any third party (including hacking or the introduction of any virus or malicious code); or v) any breach of the Agreement by You or Authorized Users.
    • THE PARTIES EACH AGREE THAT THE CANDIDATE DATA WHICH IS PROVIDED ON OR THROUGH THE PLATFORM OR BY OTHER MEANS IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS AND WE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY SUCH CANDIDATE DATA (INCLUDING BUT NOT LIMITED TO DATA ON RESUMES OR OTHER INFORMATION) OR ITS ACCURACY OR COMPLETENESS.
    • THE PLATFORM AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.  NO WARRANTY IS GIVEN THAT THE PLATFORM WILL ACHIEVE ANY SERVICE OR PERFORMANCE LEVELS.

10. Indemnity

  1. Indemnification By Us:  We will indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of the Platform as permitted hereunder, alleging that such Platform infringes or misappropriates a third party’s valid Intellectual Property Right (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defence, provided that: i) You promptly notify Us of the threat or notice of such IP Claim; ii) We will have the sole and exclusive control and authority to select defence attorneys, and defend and/or settle any such IP Claim; and iii) You fully cooperate with Us in connection therewith. The provisions of this Section 10.1 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
    1. Indemnification By You:  You shall defend, indemnify and hold  Us (including Our affiliates, trustees, officers, employees, agents and volunteers) harmless against all claims, demands, proceedings, legal actions, damages, awards or losses (including without limitation court costs and legal fees) arising in connection with: i) Your use of the Platform; or ii) a third party that alleges any of Your Data infringes or misappropriates such third party’s intellectual property rights; or iii) arises from Your use of the Services in violation of the Agreement, an Assignment Order Form, a statement of work, or applicable law; or iv) Your employee procurement, screening, testing, assessment, hiring or dismissal policies or practices, or improper use of the Software or Platform, violates any applicable Laws, including employment, data protection, privacy laws or regulations.

11. Limitation Of Liability

  1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF ALEXANDER MANN), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
  2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALEXANDER MANN SOLUTIONS CORPORATION’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO 10% THE CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS CLAUSE 11 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE PLATFORM AND/OR THE SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE AND SHALL NOT BE CUMULATIVE.
  3. IT IS ACKNOWLEDGED THAT NEITHER ALEXANDER MANN SOLUTIONS CORPORATION NOR ANY TELECOMMUNICATION CARRIERS ARE LIABLE IN ANY WAY FOR DELAYED OR UNDELIVERED MESSAGES.
  4. This clause 11 shall survive the termination of the Agreement.

12. General Terms & Conditions

  1. Assignment: You shall not, without Our prior written consent of , assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.  We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
    1. Entire Agreement:  This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, whether written or oral, relating to its subject matter.  Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.  Nothing in this clause shall limit or exclude any liability for fraud.
    1. Exclusivity: Nothing in this Agreement shall prevent Us from providing the Platform and/or any services which are similar to the Services to any of Our other customers.
    1. Variation: We may change or update the terms of the Agreement and the Policies from time to time and on such terms as we consider appropriate.
    1. Set off:  Any amount that You owe to Us under this agreement or otherwise, whether now or at any time in the future, may be set off from any amount due to You from Us under this agreement or otherwise. Any exercise by Us of our rights under this clause will not prejudice any other right or remedy available to it, whether under this agreement or otherwise.
    1. Publicity:  No announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a Party without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any court, any governmental, regulatory or supervisory authority (including, without limitation, any recognised investment exchange) or any other authority of competent jurisdiction.
    1. Training:  We may agree to provide You with training and guidance on Your use of the Platform.  Any training which is provided by Us is done at our discretion, in the format and at the location We consider most appropriate, and subject to the availability of Our personnel.  We may charge You for the training.  The Charges will be set out in the Assignment Order Form.
    1. Anti-Corruption:  You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us
    1. WaiverNo failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    1. Further assurance:  Each party shall do what is reasonably necessary to be done in order to give effect the Agreement.
  1. :  If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
  1. : The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
    1. s:  No one other than a Party to this Agreement, their successors and permitted assignees shall have any right to enforce any of its provisions.
    1. :  All notices provided by Us to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Assignment Order Form; or (b) electronic mail to the electronic mail address provided You on the Assignment Order Form. You must give notice to Us in writing by Courier or U.S. mail to: Erieview Tower, 1301 East 9th St, suite 1200, Cleveland, Ohio, 44114: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
    1. w:  This Agreement shall be governed by the laws of the State of Delaware in the United States of America. Each party submits to the sole and exclusive jurisdiction of the United States Federal Courts in the State of Delaware, or in the state courts of the State of Delaware.

Schedule 1: Definitions

The following terms have the meaning given to them:

Activation Servicesmeans any activation and/or implementation services performed by Us to configure the Platform, as described in the Assignment Order Form;
Assignment Order Formmeans the electronic or physical form order(s) ordering the Services; 
Attraction Servicesmeans those services provided by Us  in order to support Your on-payroll hourly-paid worker hiring, as described in the Assignment Order Form;
Authorized Usersmeans Your personnel who are authorised to use the Platform;
Candidatemeans a candidate for a job position who interacts with You via the Platform;
Candidate Datameans all personal data which may be provided to Us or You by the Candidate, whether via the Platform or otherwise;
Chargesmeans the fees payable by You for your use of the Platform and your receipt of the Services from time to time, as described in an Assignment Order Form;
Confidential Informationmeans all information of a confidential nature (in whatever form) which is disclosed directly or indirectly by one party to the other, including any know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind; all information produced, developed or derived from information disclosed pursuant to this Agreement; all information agreed to be, or marked as, confidential; the terms and existence of this Agreement, the Platform and the Software; all information (whether in oral, written or electronic form) relating to a party’s business which may reasonably be considered to be confidential in nature; and all information relating to that party’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers;
Consultancy Servicesmeans the various consulting, services that are described in the Assignment Order Form and provided in accordance with the relevant Services Policy;
Emergency Maintenancemeans maintenance performed by Us that occurs outside of Planned  Maintenance that is caused by an event outside of the Hosting Facility which presents an imminent security risk, or risk of degradation of the performance of the Platform;
Exit Servicesmeans the exit services that are described in the Assignment Order Form and which are provided on expiry of each relevant Assignment Order Form;
Force Majeuremeans an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;
Hosting Facilitymeans the computing infrastructure that supports the remote hosting of the Platform by, or on behalf of, Us;
Intellectual Property Rightsmeans any of the following: any patents or patent applications, trademarks (whether or not registered) including any applications for registration of the same, inventions, discoveries, topography rights, utility models and improvements whether or not capable of protection by patent or registration, copyright or design rights (whether registered or unregistered and including any applications), any goodwill in any trade or service name, trading style or getup, rights in know-how, and any and all other intellectual or proprietary rights, wherever in the world enforceable, including all reversions, renewals and extensions of such rights;
Operational Servicesmeans any back-office operational services (excluding Activation Services) performed by Us to facilitate Your use of the Platform, as described on the Assignment Order Form;
Permitted Downtimemeans any downtime as a result of Planned Maintenance, Emergency Maintenance or downtime cause in whole or part by Force Majeure;
Permitted Purposemeans use of the Platform solely for Your internal business operations in accordance with the Agreement. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law:
(a) copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of the Platform or the Services;
(b) permitting any use of the Platform in any manner by any third party; or
(c) attempting to reverse engineer, observe, study or test the functioning of or decompile the Applications or the Services (or any part),
except as expressly permitted under our Agreement.
Planned Maintenancemeans the time period that We reserves for regular, routine maintenance, currently Saturday morning between 12am to 4am Eastern Standard Time or maintenance for which We have provided you with at least twelve (12) hours prior written notice;
Platformmeans the software as a service (known as the “Hourly Platform”) and any related Software, and any alterations, enhancements, modifications, updates of such Software;
Policiesmeans the policies, terms and conditions published from time to time on Our website at: [https://www.wearehourly.com/platform-privacy-policy/], including acceptable use policies, support service policies and/or privacy polices;
Servicesmeans the various consulting, professional and/or support services provided by Us to You as set out in the Assignment Order Form and which are provided in accordance with the terms identified on the Assignment Order Form or in the Services Policy, and such Services may include the Activation Services, the Attraction Services, the Consultancy Services, the Exit Services, the Operational Services and the Support Services;
Services Policymeans the document setting out the terms and conditions in respect of each of the Services, as disclosed to you from time to time (whether on our website or otherwise) or as appended to the Order or each Assignment Order Form;
Softwarethe software applications provided by Us as part of the Platform;
Start DateMeans the start date specified in the Order;
Subscribed Territorymeans the territories identified in the Assignment Order Form;
Support Servicesmeans the technical support services provided by Us, as described in the Assignment Order Form;
Your Datameans all data (in any form) that is provided to Us, or uploaded or hosted on any part of any Platform, by You or by any Authorized User;