Last updated: 08 Jul 2018
THE FOLLOWING TERMS OF SERVICE (THE “TERMS OF SERVICE” OR THE “AGREEMENT”) GOVERNS THE USE OF Klimb’S SERVICE (“SERVICE”) BY ITS SUBSCRIBERS (“SUBSCRIBER” OR “YOU”). BY USING THE SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. SCOPE OF AGREEMENT
In order for this Agreement to be binding, one or more ordering documents ( each such document, an “Order Form” ), each of which incorporates this Agreement by reference, must be signed by both parties. The parties may add Order Forms from time to time during the term of this Agreement. If the individual signing the Order Form for Service, is signing on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind that company or other legal entity.
2. ACCESS TO THE SERVICE
(a) Klimb hereby grants Subscriber a non-exclusive, non-transferable subscription access to use the Recruiting Software and documentation, for the term of this agreement. Subscriber will not redistribute, encumber, sell, rent, lease, subService, or otherwise transfer rights to the Service.
(b) All proprietary rights including intellectual property rights in the Recruiting Software shall remain the exclusive property of Klimb. This Agreement shall not be construed as transferring any proprietary right to Subscriber or to any other third party.
3. QUALITY OF SERVICE
(a) Klimb shall be entirely responsible for all aspects of hosting the Service, including but not limited to hardware, software, bandwidth and monitoring. Klimb gives an uptime guarantee of 99% in a year. Downtime is defined by the Service not available for more than 5 continuous minutes.
(b) Klimb will use reasonable efforts to ensure that the Service is available twenty-four hours a day, seven days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Klimb to minimize such disruption where it is within Klimb’s reasonable control.
(c) Klimb may make commercially reasonable modifications to Services, or particular components which do not affect the functioning of the Service or Recruiting Software adversely, from time to time. Subscriber will be notified over email for any scheduled downtime.
(a) Subscriber data is backed up every 24 hours. All the API calls of Klimb go via encrypted SSL layer.
(b) If Klimb gains access to personal information or other data of the Subscribers as a part of rendering the Service to Subscriber, Klimb shall treat as Confidential Information of Subscriber.
(c) Subscriber shall not share his or her password with any other person or entity. Subscriber agrees to notify Klimb immediately of any actual or suspected loss, theft, or unauthorized use of Subscriber’s account or password.
5. TECHNICAL SUPPORT AND MAINTENANCE
(a) Klimb shall acknowledge the report and resolve the Service Defect in a timely manner. While Klimb will work to respond to all incoming support requests within 24 hours, there is no agreement to respond within a certain period of time.
(b) Klimb shall be responsible for maintenance of the Service, including applying all upgrades, updates and patches to Recruiting Software. All Upgrades to Software under the Subscription plan will be provided at no additional cost to Subscriber.
(c) Online User guides will be made available that address most of the product capabilities. Subscriber can avail any Free Training Webinars that are conducted from time to time. Regular Product Update Mailers will be sent to users of Subscriber.
6. SUBSCRIPTION FEE
(a) In consideration of the Service provided by Klimb, Klimb shall be entitled to payments as per Order Forms ( “Fees” ). All Fees are due in advance, Payment obligations are non-cancelable, and fees paid are non-refundable.
(b) Payment Terms. For all Fees, Subscriber will provide Klimb with a valid check, money order, or alternative document reasonably acceptable to Klimb. Subscriber is solely responsible for providing Klimb accurate and complete billing and contact information and for notifying Klimb of any changes to such information.
(c) Late Fee payments will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(d) Subscriber shall be responsible for any and all taxes, except those based on Klimb’s income. If Subscriber is obligated to collect or pay taxes on behalf of Klimb, Subscriber will deduct such amounts from Klimb’s payments and provide a valid tax exemption certificate authorized by the appropriate taxing authority.
7. USE OF THE SERVICES
(a) Subscriber agrees that (i) it will use the Service in accordance with all applicable laws and government regulations, including those related to data privacy or personal data, (ii) it will use the Service only to transmit and store Resumes (or CVs), Job Descriptions, and other forms of data & communication associated with the process of Recruitment, (iii) it ows the data posted by it through the service, (iv) it grants permission to use Subscriber data for providing services under the agreement.
(b) Subscriber hereby grants to Klimb the right to (i) use Customer’s company logo in marketing & sales (ii) use aggregate, anonymized statistics about it’s data for purposes of marketing, sales, product enhancement, and customer service.
8. CONFIDENTIAL INFORMATION
(a) “Confidential Information” shall mean any information of a confidential or proprietary nature that is so designated or is apparently confidential by its very nature and is disclosed by one party to the other in any transaction connected with this Agreement. Confidential Information shall not include (i) information that is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was lawfully received/possessed by the receiving party prior to disclosure by the other party, or (iii) is independently developed by the receiving party without access to the Confidential Information.
(b) Klimb and Subscriber agree to hold the other party’s confidential information in strict confidence using, at the least, the same degree of care used to protect its own Confidential Information, such care in no event being less than reasonable care; Refrain from using such Confidential Information for any purpose not expressly permitted or outside the scope of this Agreement; Refrain from disclosing such Confidential Information to third parties without express written authorization from the disclosing party. However either Party may disclose such Confidential Information if compelled by lawful authority to do so.
9. TERM AND TERMINATION
(a) Term of Agreement. This Agreement takes effect on the date Subscriber first signs an Order Form incorporating these terms and will remain in effect until all applicable Order Forms have expired or been terminated.
(b) Termination. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement, provided that the terminating Party gives the breaching or defaulting Party written notice of termination specifying the underlying breach or default within 30 days of discovery of such breach or default, and such breach or default remains uncured 30 days after the breaching or defaulting Party receives the notice.
(c) Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, Services and access to the Services granted to Subscriber under this Agreement will immediately terminate. If Subscriber terminates this Agreement pursuant to Section 8(b), Klimb will provide Subscriber with a pro-rated refund of any prepaid Fees covering the period from the date of termination through the end of the Term. In no event will expiration or termination of this Agreement relieve Subscriber of any obligation to pay Fees payable for the period prior to the date of termination.
(d) Data. Upon expiration or termination of this Agreement for any reason, Klimb shall provide an export file of all Data stored on the Platform (in a reasonably usable digital format) to Subscriber, if Subscriber requests this within thirty (30) business days of such expiration or termination.
(e) Survival. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive.
10. FORCE MAJEURE
(a) The performance by either Party of its obligations under this Agreement shall be excused for a period that is considered/ can be considered reasonable under the circumstances resulting in any failure or delay caused by any force majeure events such as riots, war, fire explosion, state of emergency, natural disasters (for example earthquake, cyclone, hurricane etc.), embargo or requisition or any other act of God.
(b) The Party wishing to be excused (pursuant to clause 9) shall notify the other Party in writing without delay on the intervention and on the cessation thereof.
11. GOVERNING LAW AND DISPUTE RESOLUTION
(a) This Agreement shall be governed and construed in accordance with the laws of India, and any disputes therein shall fall within the exclusive jurisdiction of the courts in Mumbai, India.
(b) If any dispute shall arise between the parties in connection with this Agreement the Parties shall seek to resolve any such dispute or difference amicably through a meeting between their respective authorized persons or business heads. If the Parties fail to resolve such dispute then either Party may give to the other Party a formal notice in writing that the dispute or difference exists, specifying its nature, the point(s) in issue and its intention to refer the dispute to arbitration.
(c) If the Parties fail to resolve such dispute or difference by further consultation within a period of thirty (30) days from the date upon which such notice of dispute has been given, the dispute or difference shall be referred to and finally settled by arbitration by a mutually appointed sole arbitrator. The arbitration proceedings shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act 1996 as amended from time to time. The venue of the Arbitration shall be at Mumbai and the language of Arbitration proceeding shall be English. The award of the sole arbitrator passed in the above circumstances shall be accepted and binding on the Parties. The costs of arbitration shall be borne by the Party against which the award is made.
12. INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) Notwithstanding anything contained herein in this Agreement, the aggregate liability of either Party for all losses, liabilities and damages arising out of or in connection with this Agreement (whether caused by negligence or otherwise) shall in no event, exceed an amount equal to the amount Subscriber has paid to Klimb under this Service agreement during the prior six months.
(b) Under no circumstances and under no legal theory, whether tort (including negligence), product liability, contract, or otherwise, shall either party be liable to the other or any other person for any indirect, special, incidental, reliance or consequential damages, even if such party shall have been informed of the possibility of such damages.
13. MISCELLANEOUS PROVISIONS
(a) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
(b) Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
(c) This Agreement sets out the entire agreement and understanding between the Parties and supersedes and cancels any prior oral or written agreement, representation, understanding, arrangement, communication or expression of intent relating to the subject matter of this Agreement.