Brighthire Terms and Conditions

1.

THE SERVICE.

1.1.

Access Right. During the Subscription Term and subject to the Terms, Brighthire, Inc. (“Brighthire” or “we”) hereby grants you a limited, non-exclusive, non-transferable and non-sublicensable right to: (a) access and use the services ordered by you under an Order Form (the “Service”) solely for your internal use, up to the number of your concurrent employees or contractors identified on the Order Form who you permit to access and use the Service subject to this Agreement (“Authorized Users”); and (b) access and use the Documentation solely in connection with your use of the Service. “Documentation” means all generally available documentation relating to the Subscription Service, including all user manuals, operating manuals, and other instructions, specifications, documents, and materials, in any form or media.

1.2.

Restrictions. You will not, and you will not permit any third party to, directly or indirectly: (a) use or access the Service or Documentation except as permitted hereunder; (b) use the Service as a service bureau, for timesharing or otherwise for the benefit of a third party; (c) copy, rent, lease, loan, assign, pledge, or otherwise in any manner provide or distribute the Service or Documentation or impose a security interest or encumbrance thereon; (d) misappropriate any data or information from the Service or Documentation; (e) hack, manipulate, interfere with or disrupt the integrity or performance of the Service or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing disrupt the functioning of the Service; (f) act in a manner that interferes with Brighthire’s operation of the Service or with the use of the Service by others; (g) gain any unauthorized access to the Service or another user’s account; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Service or Documentation or create any derivative works thereof; (i) modify, obscure or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Service or Documentation; (j) access or use the Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not), (k) use the Service to store, transmit or create libelous, obscene, deceptive, defamatory, pornographic, racist, sexual, hateful, unlawful, tortious or otherwise objectionable content, or content that infringes the rights of another person or entity; (l) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; (m) use the Service to harm, harass, threaten, or impersonate any person or violate the rights of any third party; (n) use any robot, bot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Service or to extract data; (p) use the Service to substantially replace human decision-making, and/or automatically, and without human review, rank, score, elicit recommendations or execute hiring decisions; or (r) attempt to represent in any manner that you have a relationship of any kind with us or that we have endorsed you or any products or services without our express written consent.

1.3.

Third Party Software. When using the Service in conjunction with other third-party software or services (including those integrated into the Service), you will comply with the terms of service of such third party services. 

1.4.

Reservation of Rights. Between you and Brighthire, Brighthire owns all right, title, and interest, including all intellectual property rights in and to the Service and Documentation. Brighthire reserves all rights not expressly granted to you herein. Except for the limited rights and licenses expressly granted herein, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Service or Documentation.

1.5.

Availability. Brighthire uses commercially reasonable efforts to maintain the highest service availability. However, Brighthire does not guarantee that the Service will operate in an uninterrupted or error-free manner. Brighthire performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours in order to avoid service interruptions and delays. Brighthire will use commercially reasonable efforts to notify you in advance of any scheduled downtime.  Brighthire will provide chat and email support during normal business hours (9 AM – 6 PM EST) relating to the use of the Service and respond within 1 business day to customer inquiries submitted during those hours. 

1.6.

Modification; Suspension. Brighthire may modify the Service from time to time and will provide to you, at no additional cost, access to any new features developed during the Subscription Term that are made generally available to all Brighthire customers. Brighthire may suspend your access to the Service without any liability if: (a) Brighthire needs to carry out emergency maintenance on the Service or your use of the Service presents an immediate and genuine threat to the security of the Service or the performance of the Service for other Brighthire customers; and/or (b) Brighthire in its sole discretion determine that an Authorized User is using the Service in violation of Section 1.2 or 2.1, a “Service Suspension“. Brighthire will use commercially reasonable efforts to provide advance written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Service following any Service Suspension. Brighthire will use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. 

1.7.

Your Responsibilities. You are responsible and liable for all acts and omissions of Authorized Users, including without limitation any act or omission by an Authorized User that if taken by you would constitute a breach of this Agreement. You are responsible for ensuring that your use of the Service complies with applicable law including obtaining consents and providing notices in connection with your use of the Service, including for any recording, monitoring, or communications using or through the Service. 

2.

FEES; PAYMENT.

2.1.

Fees. You will pay the fees set forth in the applicable Order Form (the “Fees”) in accordance with the payment terms set forth therein. Unless otherwise set forth in an Order Form, you will pay Brighthire within 30 days of the applicable invoice date. Fees are non-refundable unless otherwise set forth in this Agreement or as required by applicable laws. Overdue payments will be subject to interest at the rate of 1% per month, or the maximum allowable under applicable laws, whichever is less, and you will pay all reasonable costs (including reasonable attorney’s fees) incurred in connection with its collection of such overdue payments.

2.2.

Taxes. Brighthire will pass through and/or charge you any applicable sales or transaction taxes arising from your use of a subscription to the Service, excluding only taxes based on Brighthire’s net income. If Brighthire discovers that taxes were computed or collected incorrectly, your payments will be adjusted accordingly.

3.

SUBSCRIPTION TERM AND TERMINATION.

3.1.

Subscription Term. This Agreement will have the initial term set forth in the Order Form (the “Initial Term”) and may be renewed as set forth in the Order Form. The Initial Term and any Renewal Terms (as defined in the Order Form) are collectively referred to herein as the “Subscription Term”. 

3.2.

Termination. In addition to any other remedies it may have, either party may terminate these Terms or any Order Form immediately upon written notice to the other party if the other party breaches any material term of these Terms or any Order Form and such default has not been cured within 30 days after written notice of such default to the other party.

3.3.

Effect of Termination. Sections 1.2, 1.4, 1.7, 2, 3.3, 4, 6, 7, 8, 9, 10 will survive termination of these Terms. If you terminate these Terms for cause under Section 3.2, then Brighthire will provide you with a pro-rated refund of any Fees pre-paid for the remainder of the then-current Order Form term.

4.

CONFIDENTIALITY.

4.1.

Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence any and all information disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential within 30 days of disclosure or should reasonably be understood to be confidential by the receiving party (the “Confidential Information”). Notwithstanding the foregoing, the Service and the Documentation shall be Brighthire’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations hereunder; and (c) not disclose such Confidential Information to any third party except to (i) such employees, agents, subcontractors, and sub-processors of the receiving party as may have a need to know such information in the course of their duties; and (ii) legal or financial advisors or potential acquirers or financing sources of the receiving party on a need to know basis; provided, that, in each case, such recipients are bound by professional ethical duties or obligations at least as restrictive as those set forth herein. Confidential Information of the disclosing party may also be disclosed by the receiving party if required by Applicable Law (provided that the receiving party delivers reasonable notice to the disclosing party and uses commercially reasonable efforts to cooperate with disclosing party’s attempt to obtain a protective order). 

4.2.

Exceptions. Notwithstanding Section 4.1, Confidential Information does not include information which is or becomes: (i) publicly known without breach of this Agreement by the receiving party; (ii) discovered, created or independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; or (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party. Upon expiration or termination of this Agreement, the receiving party will return to the disclosing party or, upon the disclosing party’s request, destroy all Confidential Information and materials containing any Confidential Information of the disclosing party.

5.

PRIVACY AND SECURITY. Brighthire will implement and maintain reasonable administrative, physical and technical safeguards which are designed to help prevent any collection, use or disclosure of, or access to Content (as defined below) that this Agreement does not expressly authorize. You understand that to the extent that, in the course of providing the Service, Brighthire processes data that is subject to applicable data privacy laws and regulations of the European Union (including Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data), Switzerland, the United Kingdom, and U.S. state and federal privacy laws (including the California Consumer Privacy Act and California Privacy Rights Act), such processing will be subject to the terms of Brighthire’s Data Processing Amendment Agreement, as it may be updated by Brighthire from time to time and available at https://brighthire.ai/data-processing-amendment-agreement/ (the “DPA”), which is hereby incorporated into this Agreement solely with respect to processing of data covered by the DPA. In the event of any conflicts between these Terms and the DPA, the applicable provision(s) of the DPA will govern. You further understand that by using the Service, you agree to have Content collected, used, transferred to and processed in the United States of America, subject to the terms of the DPA. 

6.

Proprietary Rights; FEEDBACK.

6.1.

Ownership. Subject to Section 6.2, as between Brighthire and you, you own all right, title and interest in and to any and all the data and other information you provide, post, upload, or otherwise make available on or through the Service (“Content”). “Content” does not include (i) data, information, or materials contained on or within the Service that are provided by Brighthire, including but not limited to, text, graphics, images, code, illustrations, designs, icons, photographs, and written and other materials, or (ii) data and information relating to the operation and/or performance of the Service.

6.2.

Your License. You hereby grant to Brighthire a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to use the Content to perform its obligations under this Agreement and to create Anonymous Data. “Anonymous Data” means Content that is deidentified and aggregated by Brighthire such that the resulting data does not contain any information reasonably identifiable or attributable to you or any individual. For the avoidance of doubt, Brighthire will only disclose personally identifiable information for the purposes of providing the Service.

6.3.

Anonymous Data. All Anonymous Data will be owned by Brighthire, and you acknowledge and agree that Brighthire may use, store, analyze and disclose the Anonymous Data in aggregated form during and after the Subscription Term to (1) make the Service available to you, (2) improve the Service, and (3) conduct and publish aggregate analyses of the Service, provided in each case, that Brighthire will not, without your prior written consent, (a) disclose any information that will identify you or any Authorized User or (b) publicly identify you or any Authorized User as the source of any Anonymous Data. 

6.4.

Feedback. You may provide comments, suggestions or ideas about Brighthire’s products and services, including without limitation the Service and Documentation (“Feedback”). Brighthire has no obligation to use such Feedback or to provide any attribution for such Feedback. You hereby grant to Brighthire a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback.

7.

REPRESENTATIONS AND WARRANTIES.

7.1.

Mutual. Each party represents, warrants and covenants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties; and (d) it will comply with all applicable laws in its performance hereunder.

7.2.

Brighthire Warranty. Brighthire represents and warrants that the Service will materially conform in accordance with this Agreement. Your sole and exclusive remedy for Brighthire’s breach of this warranty will be for Brighthire to use commercially reasonable efforts to correct or replace the affected Service with a component or service of similar functionality. 

7.3.

Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT: (A) BRIGHTHIRE, ON BEHALF OF ITSELF AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE TO THE FULLEST EXTENT PERMITTED BY LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE; AND (B) THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND BRIGHTHIRE AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SERVICE. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

8.

INDEMNIFICATION. 

8.1.

Brighthire Indemnification. Brighthire will defend, indemnify and hold you and your officers, directors, agents, employees, successors and assigns (“Your Parties”) harmless from all damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys’ fees) (“Liabilities”) arising from any suit, claim, action, or proceeding (“Claim”) brought by a third-party (a) alleging that the Service (excluding any Content) as made available by Brighthire and used as permitted under the Agreement infringes any third party’s trademark, US patent, or copyright, (b) arising out of Brighthire’s violation of applicable law (including data privacy laws), gross negligence or willful misconduct. 

8.2.

Brighthire Options. Should use of the Service become, or in the opinion of Brighthire be likely to become, the subject of any infringement claim, Brighthire may, at its option: (a) procure for you the right to use the Service at no additional cost to you; (b) replace or modify, in whole or in part, the Service to make it non-infringing; or (c) if neither (a) nor (b) are, in Brighthire’s sole discretion, commercially practicable, terminate the Agreement and pay you a pro-rated refund of any Fees pre-paid for the remainder of the then-current Order Form term.

8.3.

Your Indemnification. You will defend, indemnify and hold Brighthire and its officers, directors, agents, employees, successors and assigns harmless from all Liabilities arising from any Claim arising from or relating to your actual or alleged violation of applicable law, breach of this Agreement, unauthorized use of the Service, including your Content, or any allegation that your Content infringes any third party’s trademark, US patent, copyright, or other intellectual property, privacy, or property rights.

8.4.

Indemnity Procedures. The indemnified party will provide the indemnifying party with prompt written notice of such claim. The indemnifying party will not enter into any settlement or compromise of any such claim without the indemnified party’s prior written consent. The indemnifying party may assume the exclusive defense and control of any matter subject to indemnification. In all events, the parties will cooperate in the defense of any claim.

9.

LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM THE PARTIES’ INDEMNIFICATION OBLIGATIONS, YOUR PAYMENT OBLIGATIONS, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY (I) AMOUNT EXCEEDING THE FEES PAID BY YOU TO BRIGHTHIRE OR (II) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, REVENUE, GOODWILL, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BRIGHTHIRE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL BRIGHTHIRE’S LIABILITY ARISING FROM ITS INDEMNIFICATION OBLIGATIONS EXCEED THE GREATER OF ONE HUNDRED THOUSAND DOLLARS ($100,000) OR TWO TIMES THE FEES PAID BY YOU TO BRIGHTHIRE.

10.

MISCELLANEOUS.

10.1.

Assignment. Neither party will assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent; provided that either party may assign this Agreement without such consent to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any purported transfer or assignment without such prior written consent will be null and void and of no force or effect. Subject to this Section 10.1, this Agreement will be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns.

10.2.

Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any cause beyond its reasonable control, such party will give prompt written notice to the other party, and the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.

10.3.

Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of New York without regard to its conflict of law principles. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

10.4.

Relationship of the Parties. Nothing in these Terms is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party or to bind the other party in any respect whatsoever.

10.5.

Publicity. Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship. By way of this Agreement Brighthire is deemed to have the right to identify you as one of its customers and to use your logo on its website and in marketing materials, unless revoked in writing subsequent to this Agreement. Brighthire may, subject to your prior written consent use quotes from your Authorized Users regarding their satisfaction with Brighthire and/or the Service.

10.6.

Notices. All notices permitted or required under this Agreement will be in writing and sent to the recipient’s address set forth in the most recent Order Form (or other address as either party may specify in writing), and will be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) 3 business days after being mailed by first class, registered or certified mail, postage prepaid; or (c) when delivered (receipt return requested) by email. All copy of any paper notice to Brighthire must be sent to legal@brighthire.ai. 

10.7.

Modification to the Terms. Brighthire may, at its sole discretion, revise these Terms from time to time. The most current version of these Terms will be made available to you at https://brighthire.com/terms-and-conditions. If we make material changes to these Terms, we will notify you via email. You may be required to opt-in to the revised Terms to continue to access and use the Service. By continuing to access or use the Service after those changes become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you may cease use of the Service. 

10.8.

Entire Agreement; Modification; Waiver; Severability. This Agreement and any Order Form represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement. If any terms conflict between the Order Form and the Terms, the Order Form will govern with respect to such conflicting terms. Except as otherwise provided herein, no modification of or amendment to this Agreement , nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by both parties. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under applicable laws by a court of competent jurisdiction, it will be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect.