MASTER TERMS & CONDITIONS
Effective September 22nd, 2023
These master terms and conditions (the “Agreement”) are between you (“you”, “your” or the “Customer”) and SuccessFinder Inc. (“SF”, “us” or “our”). You and SF are collectively referred to as the “Parties” or individually, a “Party”.
If you are agreeing to this Agreement not as an individual but on behalf of your company or other legal entity, then “Customer” or “you” or “your” shall refer to such entity, and you represent that you have the authority to bind such entity to this Agreement and you are binding your company or other legal entity to this Agreement.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING THE PLATFORM AND USING THE SUBSCRIPTION SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Definitions and Interpretation.
The following definitions apply in this Agreement:
“Additional Services” means any and all additional services that we agree to provide you as more specifically described in an Order, including all training and certification services, custom configuration, set-up, benchmark’s creation services, data analytics and other consulting services.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” means any applicable local, provincial, state, federal and international laws and regulations.
“Business Days” means all of the days of the week excluding weekends and statutory holidays in the Province of Quebec.
“Customer Account” means the account enabling a Customer Account User to access and use the Subscription Services.
“Customer Account User” an individual designated and authorized by you to have access and use the Customer Account in accordance with this Agreement.
“Customer Data” means any and all information provided, entered or uploaded to the Platform by a Participant or a Customer Account User. Customer Data excludes Research Data and Sociodemographic Data.
“Documentation” means the Platform User Guide and Platform Technical Requirements that are provided by SF to its customers in connection with the Subscription Services and all other documentation, manuals, and other materials describing the features and functionalities of the Platform or the Subscribed Applications, including any training materials with respect to the Services.
“Force Majeure Event” means an event, or series or related events, that is outside the reasonable control of the Party affected including without limitation, failures of the internet or any public telecommunication network, hacker attacks, virus or other malicious software attacks or infections, power failures, disasters, explosions, fires, floods, riots, terrorist attacks and wars.
“Intellectual Property Rights” means all patents (including reissues, divisions, continuations, and extensions) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design, or other intellectual property rights that are in each case protected under Applicable Law, whether or not registered, and all applications, renewals and extensions.
“Order” means SF’s quote accepted by you via your purchase order, proposal, statement of work or other ordering document executed or entered into with SF to order the Services describing the scope of work to be provided by SF to you, including (i) the Subscribed Application(s) to and, if any, Additional Services purchased by you; (ii) the Fees and payment schedule; (iii) the Subscription Term; and (iv) any other transaction-specific terms and conditions.
“Output” means the report generated by the Platform provided to you for a Participant taking an assessment and available to the Customer through the Customer Account.
“Participant” means any individual identified by you and given access to the Participant Application for assessment purposes.
“Participant Application” means the application that enables a Participant to access the Platform to complete an assessment.
“Platform” means the internet-based software-as-a-service relating to career assessment diagnostic services for development, selection and talent analytics operated by us. It includes the Customer Account and the Participant Application.
“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data; and (ii) is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Laws.
“Research Data” means data created by us including data derived from Customer Data and Sociodemographic Data that does not include (directly or by inference) any information identifying you, your Customer Account User(s) or your Participant(s).
“Sociodemographic Data” means optional sociodemographic information that Participants may voluntarily provide to us at their entire discretion.
“Services” means the Subscription Services and Additional Services.
“SF Property” means all of the following without limitation created or owned by SF, or its licensors, whether pre-existing or independently created during the Subscription Term: (i) the Platform and the Applications, custom configurations and functionalities, Documentation, Research Data, Sociodemographic Data, Suggestions, including all websites, software, tools, URLs and links, frameworks, databases, designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network-design, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works; and (ii) all Intellectual Property Rights therein.
“Subscribed Applications” means the psychometric assessment and predictive analytics-related web-based software applications for which you have been granted access to the Platform, as more specifically detailed in your Order.
“Subscription Services” has the meaning set out in Section 3.
“Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the Platform or Services suggested by you or your Customer Account Users to us.
2. Scope.
This Agreement governs each Order, as well as any future purchases made by you that reference this Agreement. You are responsible for compliance with this Agreement by all your Customer Account Users.
3. Subscription Services.
Subject to the terms and conditions of this Agreement and payment of all Fees, we hereby grant you a limited, world-wide, nonexclusive, non-transferable, non-sublicensable and revocable license, during the Subscription Term, to use the Platform for your own internal human resources management as follows: (a) access and use the Customer Account through the Customer Account Users solely for the Subscribed Applications; (b) provide Participants with access to and use of the Participant Application; (c) access and use the Documentation; and (d) access, visualize, download and export the Outputs available through the Customer Account (the “Subscription Services”).
4. Upgrades and Updates.
We have no obligation to update, improve or otherwise upgrade or modify the Subscription Services as long as we ensure that they remain useable by you during the Subscription Term. However, we reserve the right to (a) modify any component of the Platform and the Subscription Services; or (b) substitute any or all such components with their substantial equivalent; or (c) change existing infrastructure, hardware and underlying software used to provide the Subscription Services when deemed necessary or useful.
5. Technical Requirements.
The technical requirements for the use of the Subscription Services are as set forth in the Documentation (more specifically in the Platform Technical Requirements). We reserve the right to update its technical requirements and will provide you with an update when changes occur.
6. Login Access to the Platform.
You are solely responsible for ensuring that: (a) only authorized Customer Account Users have access to the Customer Account and Documentation; (b) your Customer Account Users have been certified in proper use of the applicable Subscribed Application(s), (c) proper usage of passwords and access procedures with respect to logging into the Customer Account. You must ensure that your Customer Account Users keep their passwords for access to the Platform strictly confidential and do not share such information with any unauthorized person. You are responsible for all actions taken using your Customer Account and passwords, and agree to promptly notify us of any unauthorized use or access of which you become aware.
7. Restrictions.
Neither you nor your Customer Account Users shall (directly or indirectly): (a) transfer, sell, lease, distribute, license or sublicense the Subscription Services or, except as expressly set forth herein; (b) use the Platform, the Subscribed Applications, the Documentation or the Outputs as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution; (c) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform, Subscribed Applications, Documentation or the Outputs or access the Platform, Subscribed Applications, Documentation or the Outputs in order to build a similar or competitive product or service, except as expressly permitted by Applicable Law; (d) obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Platform, Subscribed Applications, the Documentation or the Outputs; (e) use the Results or the Documentation in any manner for any machine learning and/or artificial intelligence purposes, including without limitation for the purposes of training or development of artificial intelligence technologies or tools or machine learning language models, or otherwise for the purposes of using or in connection with the use of such technologies, tools or models to generate any data or content and/or to synthesise or combine with any other data or content; or (f) without our prior written consent, conduct security, integrity, penetration, vulnerability, performance or similar testing on the Platform production environment.
8. Additional Services.
We shall provide such Additional Services, as set forth in an Order, in a professional manner with reasonable skill and care. We will assign to you team members of staff with adequate education, training and experience to perform the tasks assigned to them.
9. Fees and Expenses.
You shall pay all fees as specified in and in accordance with the payment terms indicated in the Order (the “Fees”). Unless otherwise stated in the Order, Fees are quoted and payable in Canadian dollars. Any usage of the Subscription Services in excess of the volume purchased in the applicable Order (if applicable) are subject to additional Fees. We may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us. You will reimburse all pre-approved expenses incurred in connection with the Services (if applicable). For all travel approved by you, travel time of our personnel will be billed to you at the agreed upon rate.
10. Late payment.
If any invoiced amount is not received by the due date, without limiting our rights and remedies, those charges may accrue at the rate of 2% per month or the maximum rate permitted by Applicable Law, whichever is less. In the event a payment owed by you under an accurate invoice is overdue, we shall have the further right, at our sole discretion, to suspend your access to your Customer Account until payment is made.
11. Taxes.
The Fees exclude all applicable sales or value-added taxes. We will invoice you for such taxes if we have a legal obligation to do so, and you shall pay all such taxes if so invoiced. If you are required to deduct or withhold tax from payment of our invoice, you may deduct this amount from the applicable Fees due to the extent it is due and payable as assessed withholding tax required under Applicable Law (the “Deduction Amount”). You will not be required to repay the Deduction Amount to us, provided that you presents us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide such tax receipt within the specified time period, then all Fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these Fees may result in Customer Account being suspended or terminated for non-payment.
12. Availability and Support.
We will use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for: (a) scheduled downtime (which we shall schedule to the extent practicable after business hours Eastern Time and with prior notice to you), (b) any unavailability caused by a Force Majeure Event; or (c) as necessary to update the Platform and the Services to ensure their security and integrity. Our availability metrics are available on our Status Page (status.successfinder.com). We provide you with customer support in English and in French during Business Days from 9:00 a.m. to 5:00 p.m. (ET) year-round, through the following email address:
su*****@su**********.com
or by telephone at: 514.687.2272 x 3006 (local calls) or 1.844.932.3231 x 3006 (toll free calls).
13. Ownership Rights and Data
13.1. Licenses.
Subject to full payment of Fees, we grant you: (i) the rights provided in Section 3; and (ii) a perpetual, worldwide, royalty-free and non-transferable license to use the Outputs for your own internal human resource management, subject to all underlying SF Property and Intellectual Property Rights. Except for the rights granted in this Agreement, all rights, title, and interest in and to SF Property are hereby reserved exclusively by us and/or our licensors.
13.2. Customer Data.
Between SF and you, you will retain all right, title and interest in and to Customer Data. Subject to the terms of this Agreement, you hereby grant to us a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit and create derivative works of Customer Data, in each case solely (a) to the extent necessary to provide the Services to you; and (b) for creating Research Data that we use for purposes of scientific validation and research and development.
13.3. Personal Data.
Both Parties shall comply with the Data Processing Agreement related to the collection, processing, use and storage of Personal Data available HERE.
14. Confidentiality.
Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how, business, technical and financial information or any information specifically designated as confidential or that would reasonably be understood to be confidential or proprietary disclosed to such Party (“Receiving Party”) by the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”). Any SF Property any commercial terms (including pricing) of this Agreement or any Order (but not the mere existence of this Agreement) shall be deemed Confidential Information of SF without any marking or further designation. Except as expressly authorized herein, the Receiving Party will use (and will ensure that its employees, Affiliates, agents, contractors and any approved third parties) use reasonable efforts (which shall be no less than the efforts used to protect its own confidential or proprietary information of a similar nature) to prevent the disclosure of any Disclosing Party’s Confidential Information for any purpose other than as authorized by this Agreement unless authorized in writing by the Disclosing Party. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation towards the Disclosing Party; or (d) is independently developed by the Receiving Party who had no access to such Confidential Information. The Receiving Party may also disclose Confidential Information if so required pursuant to Applicable Law or court order (but only to the minimum extent required to comply with such Applicable Law or order and with advance notice to the Disclosing Party).
15. Term And Termination.
15.1. General.
This Agreement is in effect for the duration specified in your Order (the “Subscription Term”), unless sooner terminated as permitted in this Agreement. You may not terminate an Order for convenience and except as provided in section 15.2 any Fees paid or payable by you are non-refundable. There are no refunds or credits for partially used Orders. You hereby expressly renounces to the application of Article 2125 to 2129 of the Civil Code of Quebec.
15.2. Termination for Cause.
Either Party may terminate an Order for cause if the other Party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy; or (b) breaches any provision of the Agreement (including your failure to timely pay Fees in full) and: (i) the breach is not capable of cure; or (ii) if capable of being cured, the breach is not cured within thirty (30) days after the breaching Party’s receipt of notice of breach stating the specific nature of the breach. Such termination will be without prejudice to any rights or remedies either Party may have accrued up to the termination date.
15.3. Effect of Termination.
Except as provided below, upon expiration of the Subscription Term, or termination of an Order pursuant to section 15.2: (i) the Subscription Services and all licenses granted by us under the Order and this Agreement shall immediately terminate and you shall cease to use the Subscription Services. Notwithstanding the foregoing, during a period of thirty (30) days following the expiration or termination of the applicable Order for any reason (the “Offboarding Period”), you and your Customer Account Users will retain access to Customer’s Account solely for the purposes of viewing, downloading and exporting the Outputs and will not be entitled to create new Participant profiles. After the Offboarding Period, we will disable all functionalities of the Customer’s Account and we will have no obligation to maintain or provide the Customer Data, and will anonymize such Customer Data no later than ninety (90) days following the end of the Offboarding Period. All provisions herein that, by their very nature, shall survive any termination or expiration of this Agreement will survive.
16. Disclaimer and Limitation of Liability.
16.1. Disclaimer.
(a) We expressly disclaim all warranties and representations of any kind that are not expressly stated herein, including the implied conditions and warranties of merchantability, noninfringement and fitness for a particular purpose with respect to the Platform, the Services, the Outputs and Documentation.
(b) You acknowledge that by its very nature the internet is not always available, responsive or fast and therefore understand and agree that the Services will not always be available or operate uninterrupted or error-free. We assume no responsibility for delays or problems that result from your computing or networking environment, your third-party vendors and/or your local or long-distance telephone carriers or internet service providers.
(c) We does not operate automated-decision making processes. You acknowledge that the Subscribed Applications and the Outputs guide you as to the suitability and aptitude of Participants as part of an overall recruitment or development process. The Outputs must not be relied upon as statements of fact or as the sole basis for any employment-related decisions. We do not recruit or select candidates and are not operating as a recruitment agency, nor shall we be liable for your acts or omissions, including but not limited to the use of the Subscription Services, your interpretation of the Outputs or your resulting decisions.
(d) You may choose to use or procure other third party products or services in connection with the Subscription Services, including third party integrations. If you enable or uses third party products or services with the Subscription Services (including any third party integrations), we will allow the third party providers to access or use Customer Data as required for the interoperation of their products and services with the Subscription Services, provided it is permissible in accordance with the Documentation. This may include transmitting, transferring, modifying, or deleting Customer Data, or storing Customer Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Customer Data is subject to the applicable separate agreement between Customer and such third party provider. We are not responsible for any access to, or use of, Customer Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Customer Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY, OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY OF YOUR THIRD PARTY PROVIDERS OR YOUR VENDORS.
16.2. Limitation of Liability.
EXCEPT FOR OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, WE SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, LOSS OF CONTRACT, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITIES AND LOSS OF GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED ON THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; OR (B) AMOUNTS EXCEEDING THE FEES PAID BY YOU FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
17. General Provisions.
17.1. Notices.
We may provide email notices to you in accordance with this Agreement to Customer’s contact person, as identified in the Order or otherwise through your Customer Account. You may provide notices to us pursuant to this Agreement at the following address:
le***@su***********.com
. All notices will be deemed to have been received on the Business Day following the day of transmission if sent by email or via the Customer Account.
17.2. Governing Law; Venue.
This Agreement shall be governed and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable thereto without regard to choice or conflicts of law rules and the Parties hereby submit to the jurisdiction of the courts of the Province of Quebec. The Parties agree that the UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS shall not apply to the Agreement.
17.3. Assignment.
Neither Party may assign any of its rights or obligations under this Agreement (and the Order) without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, we may assign any and all of our rights and obligations under this Agreement and applicable Order to (a) a successor in interest in the event of a merger or acquisition or otherwise sale of our business; (b) or to an Affiliate, upon written notice to you. This Agreement shall enure to the benefit of and be binding upon each of the Parties hereto and their respective successors and permitted assigns.
17.4. Entire Agreement.
This Agreement (and any applicable Order) is the entire agreement between you and us relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this Agreement.
17.5. Modifications.
We may make changes to this Agreement from time to time. If we make a material change this Agreement, we will inform you by e-mail to the e-mail address(es) noted on your applicable Order (or subsequently designated by you in writing as a contact for notifications from SF), or through a banner or other prominent notice within the Customer Account. If you do not agree to the change, you must so notify us within thirty (30) days after our notice. If you so notify us, then you will remain governed by the most recent terms and conditions applicable to you until the end of the then-current year of the Subscription Term and the updated terms and conditions shall apply upon the commencement of the subsequent year of the Order Term.
17.6. Severability.
If any provision of this Agreement is held invalid by an arbitrator or court of competent jurisdiction, such provision will be severed, and the remainder of the Agreement will remain in full force and effect and will be construed to effectuate the Parties’ intent to the maximum extent possible.
17.7. Waiver.
No failure or delay by the injured Party to this Agreement in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
17.8. Independent Parties.
The Parties are independent contractors. This Agreement shall not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give on either Party the express or implied right, power or authority to create any duty or obligation of the other Party.
17.9. Export & Trade Restrictions.
You shall not cause us to violate Canadian and U.S. economic sanctions, anti-terrorism and export and technology transfer controls laws (“Trade Control Laws”), as well as any Trade Controls Laws applicable to you, in using the Services and Documentation. Without limiting the foregoing, you represent and warrant that: (a) none of you or your directors, direct or indirect shareholders or beneficial owners, Affiliates, Customer Account Users or Participants are or will be a person that (i) is listed or designated under any Canadian, U.S. or other applicable Trade Control Laws (a “Designated Person”), (ii) owned or controlled by a Designated Person, (iii) located or organized under the laws of Afghanistan, Belarus, Burma, Iran, Russia, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine or any country that is subject to a comprehensive Canadian or U.S. trade embargo or that has been designated by the Canadian or U.S. government as a “terrorist supporting” country,
17.10. Language.
The parties acknowledge that they have requested and are satisfied that this Agreement and all other documents and notices related thereto be drawn up in English. Les parties présentes reconnaissent qu’elles ont exigé que cette convention et tous les documents et avis afférents soient rédigés en anglais et s’en déclarent satisfaites.