Terms of Service
Last Modified: August 4, 2021
These terms of service (the “Agreement”) govern your access to and use of the HireAction candidate referral and recruiting platform (the “Service”) made available by HireAction, LLC, a Delaware limited liability company (“HireAction”), including as made available through the website www.hireaction.com. Your use of the Service indicates that you agree on behalf of yourself or the entity that you represent (collectively, “Client” or “you”) to be bound by this Agreement. Depending on your circumstances, you may either be or be representing a business that is seeking to hire candidates for jobs, or you may be a candidate seeking a job. Either way, YOU AGREE THAT THIS ONLINE AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU.
HireAction reserves the right to modify this Agreement prospectively at any time. HireAction will post any changes to this Agreement on its website and will indicate the date this Agreement was last revised. If a revision meaningfully reduces your rights, it will use reasonable efforts to notify you, and where required by law, HireAction will notify you. Your continued use of the Service after any such change constitutes your acceptance of the updated Agreement.
2. ACCESS TO THE SERVICE.
2.1 Access Right.
The Service is intended solely for individuals who are at least 16 years of age. Any registration on or use of the Service by anyone under 16 is unauthorized. By using the Service, you represent and warrant that you are at least 16 years old. Subject to the terms and conditions of this Agreement, HireAction grants to Client a nonexclusive, nontransferable, non-sublicensable, revocable, limited right to access and use the Service during the Subscription Period (defined below) solely for Client’s internal business purposes. Such license includes the right, where applicable, of Client’s employees and third-party contractors to access and use the Service, as authorized by Client on a case-by-case basis (“Authorized Users”), solely on behalf of Client, provided that Client is responsible for all activities of such Authorized Users relating to the Service. Client’s access and use rights terminate at the end of the Subscription Period (or earlier pursuant to Section 6).
2.2 Necessary Rights.
HireAction represents and warrants that it has all rights, licenses, and consents necessary to grant the license in Section 2.1.
Client will use the Service only in compliance with all applicable laws, rules and regulations. Client will not: (a) distribute, sublicense, resell or otherwise transfer access to the Service to any third party (except as permitted in Section 2.1); (b) reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change any part of the Service; or (c) derive or attempt to derive the source code or structure of any part of the Service.
2.4 Account Information and Activity.
3. SUBSCRIPTION AND PRICING.
3.1 Subscription Period.
HireAction will make the Service available to Client for a one-year or one-month period (the “Subscription Period”) specified in your online or offline order form for the Service (the “Order Form”) referencing this Agreement , subject to Client’s payment of the Access Fee (defined below), unless this Agreement is earlier terminated pursuant to Section 6. Each Subscription Period will automatically renew for a like period unless either Party notifies the other that it wishes for it not to renew at least 30 days prior to the end of the then current Subscription Period. HireAction’s then-current Access Fees will apply to all automatic renewals. If you are a job candidate rather than a business seeking job candidates, then your Subscription Period commences when you first access the Service and continues until terminated in accordance with Section 6 below.
3.2 Access Fee.
If you are a job candidate, HireAction does not charge fees to access the Service. For other Clients, HireAction will invoice or charge Client on or about the Effective Date (or upon the conclusion of a free trial period, if applicable) for the access fee set forth in the Order Form or on HireAction’s pricing page (hireaction.com/pricing) in the case of automatic renewals (the “Access Fee”). Access Fees do not apply during a free trial period. The Access Fee excludes all applicable sales, use and other taxes, and Client will be responsible for payment of all such taxes, and any related penalties and interest, that may arise from Client’s use of the Service (other than taxes based on HireAction’s net income).
Unless otherwise indicated in an Order Form, business Clients must provide HireAction with a valid payment card accepted by HireAction and billing information in order to use the Service. By providing this, Client authorizes HireAction to verify that information immediately, and to charge Client’s account for all fees and charges due and payable to HireAction under this Agreement without additional notice or consent. HireAction reserves the right at any time to change its prices and billing methods, either immediately upon posting on our website or by e-mail delivery to Client. For Clients with a payment card registered with the Service, payment is due, and HireAction will charge Client the Access Fee at, the start of the Subscription Period. HireAction charges for the entire Subscription Period unless HireAction has agreed to monthly billing. Clients paying by invoice will pay HireAction the Access Fee within 30 days of the date of invoice. If the Access Fee is not paid when due, HireAction reserves the right to charge a late payment fee of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If Client withholds payment of any amount due under an invoice that has not been disputed in good faith and in writing prior to the payment due date, HireAction may suspend Client’s access to the Service until the outstanding balance is paid in full. HireAction will restore Service access promptly after it receives all outstanding amounts owed.
4.1 Technical Support.
HireAction will provide technical support by email and a chat application Monday through Friday (excluding U.S. federal holidays and other days when HireAction’s offices are closed) during the hours of 9 a.m. to 6 p.m. Eastern Time. Client may contact HireAction at firstname.lastname@example.org. HireAction will respond to support inquiries and complete any necessary technical updates within a commercially reasonable amount of time.
From time to time, HireAction may update the server-side software and other functionality underlying the Service. Such updates are intended to improve or enhance the Service and may take the form of bug fixes, program code updates and enhancements.
5. CLIENT CONTENT.
Subject to the rights granted to HireAction under this Agreement, as between the Parties, Client retains full ownership of all data and other information uploaded or posted to, or otherwise made available on, the Service through Client’s account (collectively, “Client Content”), and any intellectual property rights or other proprietary rights thereto. Client Content excludes, and HireAction owns, (a) all aggregate and/or anonymous Service usage data not capable of uniquely identifying Client, its Authorized Users or any other person and (b) meta-data generated by the Service concerning Client’s use of the Services (e.g., access logs) (collectively, “HireAction Data”).
5.2 Responsibility for Client Content.
As between the Parties, Client is solely responsible for all Client Content. Notwithstanding the foregoing, HireAction may, but is not obligated to, review Client Content from time to time, and may delete or remove from the Service any Client Content that HireAction determines in its reasonable discretion to be illegal, malicious or otherwise objectionable. Client agrees to retain a copy all Client Content and will not rely on HireAction to archive it. HireAction has no duty to maintain any Client Content stored on HireAction’s systems following the Subscription Period.
Subject to the terms and conditions of this Agreement, Client grants HireAction a nonexclusive, nontransferable, non-sublicensable, fully paid, worldwide, revocable, limited license to store, use, copy, prepare derivative works of (including excerpting, in whole or in part), distribute and display the Client Content solely to provide the Service to Client and to generate HireAction Data.
5.4 Necessary Rights.
Client represents and warrants that it has all rights, licenses, and consents necessary to grant the license in Section 5.3, including under any and all intellectual property rights, as well as any rights of privacy, rights of publicity or similar rights of any type, in or to the Client Content. Client will not upload to or otherwise make available on the Service any Client Content for which Client does not have all necessary rights, licenses, or consents needed to so make available such Client Content on the Service.
HireAction employs commercially reasonable measures in connection with the Service designed to protect against the unauthorized acquisition of Client Content stored by HireAction (a “Security Breach”). Client acknowledges, however, that security measures cannot fully protect against Security Breaches, and that the Service runs on software, hardware and networks which may require maintenance or experience problems or breaches of security beyond HireAction’s control. HireAction cannot guarantee the Service will not experience interruption or a Security Breach.
HireAction may terminate this Agreement (and Client’s right to access the Service) at any time if a business Client does not pay the Access Fee within 30 days after receiving a written reminder from HireAction that it is past due. Either Party may also terminate this Agreement (and Client’s right to access the Service) prior to the end of the Subscription Period (a) if the other Party has committed any other material breach of this Agreement and failed to cure such material breach within 30 days after receiving written notice of the breach from the non-breaching Party and (b) with respect to Clients that are candidates seeking jobs, at any time upon 30 days’ prior written notice to the other Party.
6.2 Effects of Termination.
Upon the expiration of the Subscription Period or earlier termination of this Agreement, HireAction will disable Client’s access to the Service, and upon Client’s request deliver to Client all Client Content then in HireAction’s possession in a form reasonably acceptable to Client. Termination of this Agreement will not relieve either Party from its obligation to comply with any terms of this Agreement that call for performance prior or subsequent to the effective date of such termination, including Client’s obligation to pay for access to the Service for periods prior to such termination date. All Access Fees are non-refundable; provided upon Client’s termination for HireAction’s uncured material breach, HireAction will refund to Client any pre-paid Access Fees pro-rata based on the unused time remaining in the Subscription Period.
7.1 Confidential Information.
In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). “Confidential Information” means information in any format that the Disclosing Party considers proprietary, including information relating to its technology, trade secrets, know-how, business operations, products, services, compliance reports, security testing reports, plans, customers, and pricing, whether or not identified as “confidential;” provided that Confidential Information excludes information the Receiving Party can document (a) is or becomes generally available to the public at the request of the Disclosing Party, or without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party.
7.2 Non-Disclosure Obligations.
The Receiving Party agrees: (a) not to divulge to any third person any Confidential Information of the Disclosing Party, (b) to give access to such Confidential Information solely to those employees and agents with a need to access it for purposes of this Agreement, and (c) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, and in no event less than reasonable care. Nothing in this Agreement prevents the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided to the extent lawful that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1 Reservation of Rights.
HireAction reserves all rights not expressly granted herein. This Agreement is not a sale of the software or documentation underlying the Service, or any derivations thereof. HireAction reserves the right to modify the Service at any time in HireAction’s discretion; provided if any modification adversely affects the functionality or accessibility of the Service, HireAction will use commercially reasonable efforts to ensure it only applies to Client following the expiration of Client’s then current Subscription Term.
The Service (including the software and all associated documentation) and the HireAction Data is proprietary and trade secret information of HireAction. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights, in the Service, and all derivatives thereof, remain with HireAction and its licensors. Client will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.
All trademarks, service marks, logos and trade names associated with HireAction and/or the Service, whether registered or unregistered, are proprietary to HireAction (or to other companies where so indicated). Client will not use any such marks in connection with any product or service or in any manner that is likely to cause confusion, and will not copy, imitate, or use any such marks, in whole or in part, without the prior written permission of HireAction.
9.1 Indemnification by HireAction.
Subject to the overall limitation of liability set forth in the second sentence of Section 10.2, HireAction will indemnify, defend, and hold harmless Client, and its officers, directors, employees and agents, from and against all claims, damages, losses, liabilities, costs, expenses, and reasonable attorneys’ fees incurred as a result of any third-party claim(s) (a) alleging that Client’s use of the Service as authorized hereunder infringes or misappropriates any third party’s intellectual property rights or (b) arising from any breach by HireAction of this Agreement that results in a Security Breach. For any such claim for which Client seeks indemnification from HireAction, Client will promptly notify HireAction in writing of the claim, cooperate with HireAction in defending or settling the claim at HireAction’s expense, and allow HireAction to control the defense and settlement of the claim, including the selection of attorneys. In addition, for claims arising under subsection (a) above, or that in HireAction’s opinion are likely to arise, HireAction may in its sole discretion (i) procure the right for Client to continue using the Service, (ii) replace or modify any of the Service to make it non-infringing, or (iii) terminate this Agreement and immediately revoke Client’s access to the Service, and refund Client its Access Fees pro-rata. THIS SECTION 9.1 STATES THE ENTIRE OBLIGATION OF HIREACTION AND THE EXCLUSIVE REMEDIES OF CLIENT WITH RESPECT TO ANY SECURITY BREACH CLAIMS AND ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT RELATED TO CLIENT’S USE OF THE SERVICE.
9.2 Indemnification by Client.
Subject to the overall limitation of liability set forth in the second sentence of Section 10.2, Client will indemnify, defend, and hold harmless HireAction, and its officers, directors, employees and agents, from and against all claims, damages, losses, liabilities, costs, expenses, and reasonable attorneys’ fees incurred as a result of any claim by a third party (a) alleging that any of the Client Content infringes or misappropriates any third party’s intellectual property or other proprietary rights, or (b) arising from Client’s conduct of its business or Client’s use of the Service (except to the extent such claim alleges the Service infringes a third party’s intellectual property rights and would be subject to subsection (a) of Section 9.1). For any such claim for which HireAction seeks indemnification from Client, HireAction will promptly notify Client in writing of the claim, cooperate with Client in defending or settling the claim at Client’s expense, and allow Client to control the defense and settlement of the claim, including the selection of attorneys. THIS SECTION 9.2 STATES THE ENTIRE OBLIGATION OF CLIENT AND THE EXCLUSIVE REMEDIES OF HIREACTION FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR VIOLATIONS OF OTHER PROPRIETARY RIGHTS RELATED TO THE CLIENT CONTENT PROVIDED UNDER THIS AGREEMENT.
10. DISCLAIMERS AND LIMITATIONS OF LIABILITY.
EXCEPT AS EXPRESSLY WRITTEN IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HIREACTION DOES NOT GUARANTEE ANY SPECIFIC RESULT FROM USE OF THE SERVICE, AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS UNINTERRUPTED OR ERROR-FREE.
10.2 Limitations of Liability.
EXCEPT FOR ANY DAMAGES ARISING UNDER ANY INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED ALL AMOUNTS PAID AND PAYABLE BY CLIENT TO HIREACTION UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR FIFTY DOLLARS ($50.00) IF SUCH AMOUNT PAID OR PAYABLE IS ZERO. The Parties acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that without such limitations, the financial and other terms of this Agreement would be different.
11.1 Governing Law.
This Agreement and the relationship between the parties will be governed by the laws of the State of New York without reference to choice of law or conflicts of law principles. The application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded. New York County, NY is the exclusive forum for any appeals of an arbitration award or any for trial court proceedings if the arbitration provision below is unenforceable.
11.2 Arbitration of Disputes.
Any dispute, claim or controversy arising out of or in connection with this Agreement or the relationship of the Parties, or the breach, termination, enforcement, interpretation or validity of this Agreement (“Dispute”), including the determination of the scope or applicability of this Agreement to arbitrate, will be finally decided by arbitration in accordance with JAMS Comprehensive Arbitration Rules and Procedures before a panel of three JAMS arbitrators, one selected by HireAction, one selected by Client, and the third, who will be the chairman, selected by agreement of the two arbitrators selected by the Parties. If the two arbitrators fail to agree on the selection of the third arbitrator within 30 days following the selection of the second arbitrator, the chairman will be selected in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. Subject to any valid requirements of any applicable statute, the arbitration will be conducted in New York County, New York. Each Party may be represented by counsel in any such arbitration. During the course of any arbitration hereunder, the Parties will (a) each bear its own costs and attorneys’ fees and any expert witness fees, and (b) each bear equally the arbitrators’ fees and expenses. Any arbitration will be confidential, and the Parties may request that the arbitrators issue appropriate protective orders to safeguard each Party’s confidential information. Any award rendered by the arbitrators will be final, and judgment may be entered upon it in any court having jurisdiction. The arbitrators will have the authority to award temporary, preliminary and permanent injunctive and equitable relief in the arbitration (in addition to any monetary relief); provided that either Party may opt to seek equitable relief, including emergency injunctive relief, at any time, from a court of competent jurisdiction. The existence of any Dispute, and any related resolution, mediation, settlement, or arbitration decision, will be kept in confidence by the Parties, except as required in connection with the enforcement of an arbitration decision or as otherwise required by applicable law. If you are job seeking candidate rather than a business client then, notwithstanding the foregoing agreement to share the cost of arbitration, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, HireAction will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation.
11.3 No Class Action/Jury Trial Waiver.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND THE ARBITRATORS MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. EACH PARTY HEREBY WAIVES THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
11.4 Data Processing Addendum.
If Client is a paying subscriber to the Service, the terms of the data processing addendum at www.hireaction.com/dpa/ (the “DPA“), which are hereby incorporated by reference, shall apply to the extent that HireAction processes any Client Personal Data (as defined in the DPA) on Client’s behalf in the provision of the Services, and the parties have not executed another addendum overriding the DPA. If applicable, for the purposes of the Standard Contractual Clauses attached to the DPA, if Client Personal Data is to be transferred out of the European Economic Area, Client’s consent to this Agreement shall be treated as agreement to and execution of the Standard Contractual Clauses and their Appendices.
11.5 No Assignment.
Neither Party may assign or otherwise transfer this Agreement or any rights granted under this Agreement without the prior written consent of the other Party; provided either Party may assign this Agreement to a successor at least substantially all of its stock or assets or to an entity into which it is merged.
11.6 No Waiver.
The waiver by any Party of any right hereunder or the failure to perform or of a breach by the other Party will not be deemed a waiver of any other right hereunder or of any other breach or failure by such other Party whether of a similar nature or otherwise.
If any term of this Agreement is declared by a court of competent jurisdiction or arbitration panel to be unenforceable, this Agreement will continue in full force and effect to the fullest extent permitted by law without such term, and the Parties will amend this Agreement to the extent feasible to lawfully include the substance of the excluded term to as fully as possible realize the intent of the Parties and their commercial bargain under this Agreement.
11.8 Independent Contractors.
The Parties are independent contractors. Neither Party will be deemed to be an agent, partner or joint venturer of the other for any purpose as a result of this Agreement.
Any notice or consent required or permitted to be given under this Agreement will be in writing, and will be deemed to have been received: (a) upon receipt when delivered personally, (b) one business day after dispatch via a nationally recognized overnight courier, (c) three days after dispatch via registered mail, (d) one business day after email to Client’s billing or other contact for the Service, in the case of notice to Client, or to email@example.com, in the case of notice to HireAction or (e) upon HireAction making it available to Client within the Services. Notices delivered other than via email shall be delivered, in the case of notice to Client, to Client’s billing or other address specified in the Service, or to 82 Nassau St #60266, New York NY 10038 the case of notice to HireAction in each case addressed to the attention of “Legal Dept.” for notices sent via methods (a)–(c) above.
11.10 California Residents.
HireAction, LLC provides the Service. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
11.11 Complete Agreement; Amendment.
This Agreement (including the DPA, and any Order Form and Exhibits) is the entire agreement between the Parties with respect to its subject matter, and supersedes all prior agreements and understandings. It may not be modified except by (a) HireAction posting an updated copy to hireaction.com/terms-of-service, (b) Client accepting an online Order Form in the form presented by HireAction to Client from within the Service or (c) by both Parties signing an offline Order Form manually or via a third party e-signature platform.