Triplebyte Hire - Company Agreement

Last modified: August 31, 2020

This Triplebyte Hire Agreement is made and entered into between Triplebyte and the entity or person agreeing to these terms ("Customer"). "Triplebyte" means: Salus Labs Inc dba Triplebyte, with offices at 301 Howard St, Suite 700, San Francisco California 94105 USA.

This Agreement is effective as of the date you access or use the Services, or, if applicable, the date the Agreement is countersigned (the "Effective Date"). If you are accepting on behalf of your employer or another entity, or accessing or using the Services you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms; (ii) you have read and understood this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity, please do not access or use the Services (or, if applicable, do not sign this Agreement).

This Agreement governs Customer's access to and use of the Services.

Provision of the Services.
1. Services Use. During the Term, Triplebyte will provide the Services ordered by Customer, and grants Customer the right to access and use the applicable Services, subject to the terms of this Agreement, including the SLA and applicable Order Forms.
2. Services Limitations.
  1. Usage Limits. Usage of the Service may come with limitations specified in Customer’s Order Form, including but not exclusively (i) limit on the number of Candidate Hires, (ii) limit on the number of Call Requests, (iii) limit on the number of User Accounts, (iv) limit on the number of Hiring Locations or (v) limit on the number of Roles. Candidate Hires limit is subject to the Excluded Candidates close as described in Section 15.2.
  2. Usage in excess of Limits. Any usage of the Services made in excess of the limits described in Section 1.2a may be subject to additional fees as described in the Order Form. Those fees may include, but is not limited to:
    1. Candidate Hires over the limit. Payment of this fee is due net 30 calendar days from the Offer Letter being signed by Candidate.
  3. Candidate Hire Guarantee. Any Hire that is terminated for any reason by either party, with the exception of Client closure, sale, and/or reorganization, during the first 3 months of Candidate’s Hire, will be credited back toward the Usage Limits described in Section 1.2a. To be eligible, Customer must notify Triplebyte within 30 days from the time of the Candidate separation. This guarantee is void if payment is not made according to the Billing parameters detailed in Section 4 or if Term of the Services has expired without a renewal.
  4. Access Period. Triplebyte will provide the Service for a period (the “Access Period”) beginning on the Effective Date and expiring when (i) Customer exceeds the Usage Limits described in Section 1.2a or (ii) when the Term of this Agreement expires, whichever is earlier.
3. Early Access Period Invocation. Before the Effective Date of the Access Period is set to start, the Customer can at any time, simply by asking Triplebyte with a 7 days notice, requests that their Access Period be moved earlier in time. Invoking an early Access Period will move earlier in time, both the Effective Date and the End Date of the Access Period, such that the length of the Access Period remains the same.
4. Modifications.
  1. Changes to Services. Subject to Section 1.4c (Discontinuance of Services), Triplebyte may make commercially reasonable changes to the Services from time to time or discontinue any Services or portion or feature(s) of the Services at any time and if such change is material, Triplebyte will inform Customer, by either sending an email to the Notification Email Address or alerting Customer through the Company Dashboard. If any change to the Services involves the addition of new applications, features or functionality for the Services (collectively, "New Applications"), use of the New Applications may be subject to additional terms but Customer will not be required to use the New Applications in order to use the Services.
  2. Changes to Terms. Triplebyte may make commercially reasonable changes to this Agreement and the URL Terms from time to time. If Triplebyte makes a material change to this Agreement and/or the URL Terms, Triplebyte will inform Customer by either sending an email to the Notification Email Address or alerting Customer through the Company Dashboard. If the change has a material adverse impact on Customer and the change is not a result of Triplebyte complying with a court order or applicable law, Customer may notify Triplebyte within thirty days after being informed of the change that Customer does not agree with the change. If Customer notifies Triplebyte as required, then Customer will remain governed by the terms in effect immediately before the change until the earlier of: (i) the end of the then-current Term or (ii) 12 months after Triplebyte informs Customer of the change, unless the modification to the URL Terms is in response to a court order or to comply with applicable law. If the Agreement renews, it will do so under the updated Agreement and the URL Terms.
  3. Discontinuance of Services. Subject to 1.4(d), Triplebyte can discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
  4. Deprecation Policy. Triplebyte will notify Customer if it intends to make a Significant Deprecation. Triplebyte will use commercially reasonable efforts to continue to provide the Services without a Significant Deprecation for at least one year after that notification or until the end of the then-current Term, whichever is shorter, unless (as Triplebyte determines in its reasonable good faith judgment): (i) otherwise required by law or by contract (including if there is a change in applicable law or contract), or (ii) doing so could create a security risk or a substantial economic or technical burden. This policy is the "Deprecation Policy."
5. Additional Products. Triplebyte may make Additional Products available to Customer and its End Users. Additional Products are not subject to, or governed by, this Agreement. Customer can enable or disable Additional Products. Unless otherwise specifically stated, Customer is not required to use Additional Products in order to use the Services.
Data Processing; Security.
1. Data Processing
  1. Triplebyte’s Data Processing Amendment will be automatically incorporated into this Agreement.
2. Updates to the Data Processing Amendment. Subject to Sections 1.4a (Changes to Services) and 1.4c (Discontinuance of Services) and notwithstanding Customer may have clicked-to-accept the Data Processing Amendment pursuant to Section 2.1 (Data Processing Amendment), Triplebyte may only update or modify the Data Processing Amendment:
  1. where the relevant change is required to comply with applicable law, applicable regulation, court order or guidance issued by a governmental regulator or agency;
  2. where the relevant change is expressly permitted by the terms of the Data Processing Amendment; or
  3. where the relevant change:
    1. is commercially reasonable;
    2. does not result in degradation of the overall security of the Services;
    3. does not expand the scope of or remove any restrictions on Triplebyte's processing of Customer Data, as described in Section 5 (Processing of Customer Data) of the Data Processing Amendment; and
    4. does not otherwise have a material adverse impact on Customer's rights under the Data Processing Amendment.
  4. If Triplebyte makes a material change to the Data Processing Amendment in accordance with this Section 2.2, Triplebyte will inform Customer through the Notification Email Address or the Company Dashboard.
Customer Obligations.
1. Customer Requirements. Customer may access or use the Services only if the following conditions are met:
  1. Customer will only use the Services within the Territory.
  2. Customer will not contact a Candidate found first on the Services via any other external mean, including but not limited to, phone, email or other websites. Customer has to use the mean provided by the Services to get in contact with a Candidate.
  3. Customer will, within a maximum of 10 business days, keep Triplebyte aware of any Candidate Hire made through the Services.
  4. Customer agrees to be transparent with the status of Candidate in their hiring pipeline.
  5. Customer agrees to share salary data for any Candidate Hire made through the Services.
2. Customer Abuse of the Services. Customer is prohibited (i) in using any automated or scraping tool to use the Services, (ii) to share any personal Candidate information with any other person outside their organization or on any external service.
3. FastTrack Candidates’ obligations. Customer agrees that interacting with a FastTrack requires:
  1. To be responsive in all communications with Candidate
  2. To skip all technical screening of Candidate before onsite interview. This includes, but is not limited to, technical phone screens, take-home programming assignments and pair programming video interviews.
4. SuperWeek Candidate Travel. Customer can decide to use the optional SuperWeek on a per Candidate basis in their Company Dashboard. When used, Triplebyte will handle air travel and hotel accommodation for the Candidate. Triplebyte will pay for all travel costs incurred by a Candidate and then charge Customer a flat logistic fee detailed in the SuperWeek Agreement or in the Company Dashboard. Candidate will be clearly marked as being subject to a SuperWeek before Customer engages with Candidate.
5. Confidentiality of Candidate Personal Information. Personal data, Technical Scores and resumes provided by Triplebyte through the Services are confidential and for the Customer’s use only. It is strictly prohibited for Customer to share this information.
6. Compliance. Customer must ensure that all use of the Services by Customer and any End Users complies with this Agreement, the Acceptable Use Policy, and all applicable laws and regulations.
7. Customer Administration of the Services. Customer's Administrators may specify one or more Administrators for the Services through the Company Dashboard administrative settings. Administrators will have the right to access Admin Account(s) and to administer the End User Accounts. As between Triplebyte and Customer, Customer is solely responsible for the internal management and administration of Customer's Services, including: (a) maintaining the confidentiality of Customer's password(s) and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement.
8. Administrator Access; End User Consent.
  1. Administrators may have the ability to access all Customer's End User Accounts, including the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.
  2. Customer will obtain and maintain all required consents from any End Users of the Services to allow: (i) Administrators to have the access described in this Agreement; and (ii) Triplebyte's provision of the Services to Administrators and End Users, including its processing of Customer Data pursuant to this Agreement.
9. Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Triplebyte of any unauthorized use of, or access to, the Services of which it becomes aware.
10. Restrictions on Use. Unless Triplebyte specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws; or (e) use the Services on behalf of or for the benefit of any entity or person who is prohibited from using the Services by United States laws or regulations and other applicable jurisdictions. Triplebyte makes no representations or warranties that this product meets or satisfies compliance requirements under HIPAA, ADA, EEOC regulations, Executive Order 11246, or any other laws or regulations applicable to employers or federal contractors, and Customer remains solely responsible for all compliance obligations.
Billing and Payment.
1. Billing. Triplebyte currently offers a single billing option when placing an order for the Services. Triplebyte may change its offering of billing options, including by limiting or ceasing to offer any billing option, upon thirty days' written notice to Customer (which may be by email). Billing options may not be available to all customers. Customer may pay for the Services using the payment options listed in Section 4.2 below.
  1. Annual Plan. Customer will be committed to purchasing the Services from Triplebyte for an annual term. Triplebyte will bill Customer according to the terms associated with Customer's elections on the Order Form.
2. Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Form or invoice.
  1. Invoices. Payments for invoices are due 30 days after the invoice date, unless otherwise specified on the Order Form, and are considered delinquent after such date.
  2. Other Forms of Payment. Customer may change their payment method to those available within the Company Dashboard. Triplebyte may enable other forms of payment by making them available in the Company Dashboard. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
3. Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Triplebyte in collecting such delinquent amounts, except where such delinquent amounts are due to Triplebyte's billing inaccuracies.
4. Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer fails to provide a purchase order number then (a) Triplebyte will invoice Customer without a purchase order number; and (b) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order do not apply and are void.
5. Taxes.
  1. Customer is responsible for any Taxes, and Customer will pay Triplebyte for the Services without any reduction for Taxes. If Triplebyte is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Triplebyte with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some jurisdictions the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to Triplebyte, Customer must provide Triplebyte with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation the Services are subject to local VAT and the Customer is required to make a withholding of local VAT from amounts payable to Triplebyte, the value of Services calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local VAT and the grossed-up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that Triplebyte will receive payment for its services for the net amount as would otherwise be due (the VAT inclusive price less the local VAT withheld and remitted to applicable tax authority).
  2. If required under applicable law, Customer will provide Triplebyte with applicable tax identification information that Triplebyte may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Triplebyte for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
6. Invoice Disputes. Any invoice disputes must be submitted before the payment due date. If the parties determine that certain billing inaccuracies are attributable to Triplebyte, Triplebyte will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Triplebyte will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice.
7. Suspension for Non-Payment.
  1. Automatic Suspension. Customer will have thirty days to pay Triplebyte delinquent Fees. If Customer does not pay Triplebyte delinquent Fees within thirty days, Triplebyte may automatically suspend Customer's use of the Services. The duration of this suspension will be until Customer pays Triplebyte all outstanding Fees.
  2. During Suspension. If Customer has an annual commitment to Triplebyte for the Services, Triplebyte will continue to charge Customer monthly Fees during Customer's suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services.
  3. Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, Triplebyte may terminate Customer for breach pursuant to Section 12.
Technical Support Services.
1. By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer's or End Users' use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Triplebyte.
2. By Triplebyte. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Triplebyte in accordance with the TSS Guidelines. Triplebyte will provide TSS to Customer in accordance with the TSS Guidelines subject to payment of support Fees, if applicable. Customer acknowledges and agrees that Reseller may disclose End User personal data to Triplebyte as reasonably required in order for Reseller to handle any support issues that Customer may choose to escalate to or via Reseller.
Suspension.
1. Of End User Accounts by Triplebyte. If Triplebyte becomes aware of an End User's violation of the Agreement, then Triplebyte may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Triplebyte's request to Suspend an End User Account, then Triplebyte may do so. The duration of any Suspension by Triplebyte will be until the applicable End User has cured the breach which caused the Suspension.
2. Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Triplebyte may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Triplebyte Suspends an End User Account for any reason without prior notice to Customer, at Customer's request, Triplebyte will provide Customer the reason for the Suspension as soon as is reasonably possible.
3. Suspension to Comply with Laws. Triplebyte may at its sole discretion Suspend the provision of any Services at any time if required to comply with any applicable law.
Confidential Information.
1. Protection of Confidential Information. The recipient ("Recipient") of Confidential Information disclosed by the other party (the "Provider") will not disclose that information except as described in Section 7.2 (Disclosure of Confidential Information). The Recipient will use the Provider's Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
2. Disclosure of Confidential Information.
  1. General. Subject to the remainder of this Section 7.2, the Provider's Confidential Information may be disclosed: (i) by the Recipient to its Affiliates, Reseller (where applicable), employees, agents, sub-contractors or professional advisors who need to know it and who have a legal obligation to keep it confidential (collectively, "Delegates"); (ii) by the Recipient or its Affiliates pursuant to a Legal Process; or (iii) with the Provider's written consent. The Recipient will ensure that its Delegates are subject to the same non-disclosure and use obligations as apply to the Recipient under Section 7.1 (Protection of Confidential Information).
  2. Notification. Before the Provider's Confidential Information is disclosed pursuant to a Legal Process as described in Section 7.2(a), the Recipient will, or will ensure that its Affiliate will, use commercially reasonable efforts to promptly notify the Provider (via the Notification Email Address, in the case of notices given by Triplebyte), provided however that the Recipient or its Affiliate may disclose the Provider's Confidential Information pursuant to a Legal Process without giving prior notice if the Recipient or its Affiliate is informed that (i) it is legally prohibited from giving notice or (ii) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury to any person.
  3. Opposition. Recipient will comply with the other party's reasonable requests relating to efforts to oppose disclosure of its Confidential Information.
Intellectual Property Rights; Brand Features.
1. Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and Triplebyte owns all Intellectual Property Rights in the Services.
2. Display of Brand Features. Triplebyte may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the administrative controls within the Services. Triplebyte may also display Triplebyte Brand Features on the Service Pages to indicate that the Services are provided by Triplebyte.
3. Brand Features Limitation. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use. By doing so, the Customer acknowledges and agrees that they may be losing access to part of the Services, and/or that some of the Services features may become severely degraded or completely unusable as a result.
Publicity.
1. Promotional Material. Customer agrees that Triplebyte may include Customer's name or Brand Features in a list of Triplebyte customers, online or in promotional materials. Customer also agrees that Triplebyte may verbally reference Customer as a customer of the Triplebyte products or services that are the subject of this Agreement. This section is subject to Section 8.3 (Brand Features Limitation).
2. Company Profile. Customer agrees to have a public Company Profile listed on Triplebyte’s website as well as having public Role webpages. This is mandatory to be able to access and use the Services and this section is not subject to Section 8.3 (Brand Features Limitation).
3. Job Ads. Customer agrees that Triplebyte may advertise Customers' open Roles in email communications and on third party partner websites in order to drive more Candidates to apply to their Roles.
Representations, Warranties and Disclaimers.
1. Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Triplebyte warrants that it will provide the Services in accordance with the applicable SLA.
2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT; AND (B) NEITHER TRIPLEBYTE NOR ITS SUPPLIERS WARRANTS THAT OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRIPLEBYTE MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. IF TRIPLEBYTE HAS COMPLIED WITH ITS OBLIGATIONS UNDER THE AGREEMENT, AND THERE IS A DELETION OF ANY CUSTOMER DATA, THEN TRIPLEBYTE AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR SUCH DELETION OF CUSTOMER DATA.
Term.
1. Agreement Term. This Agreement will remain in effect for the Term, and notwithstanding anything to the contrary in the Order Form, or any selection made by the Customer in the Company Dashboard with regards to any renewal Terms.
2. Term and Purchases During Term. Triplebyte will provide the Services to Customer during the Term. Unless the parties agree otherwise in writing, End User Accounts or additional options purchased during any Term will have a prorated term ending on the last day of that Term.
3. Renewal. At the end of the Term, the Services will automatically renew for an additional Term of equal length unless either party provides thirty days written notice of non-renewal.
4. Revising Rates. Triplebyte may revise its rates for the following Term by providing Customer written notice (which may be by email) at least thirty days before the start of the following Term.
Termination.
1. Pilot Period. If Customer is currently within a Pilot Period (Between the Effective and the End Date of that Period), Customer can cancel its subscription to the Services at any time and for any reason by contacting Triplebyte. By doing so:
  1. The subscription Services are canceled immediately and Customer won’t be invoiced for them.
  2. All Usage Limits listed in the Order Form are reduced to 0 retroactively to the start of the Pilot Access Period.
  3. Any Usage in excess of the new Usage Limits, as mentioned in Section 1.2, will be due, including, but not limited to, Candidate Hires.
2. Termination for Cause. Either party may suspend performance or terminate this Agreement if: (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (c) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
3. Termination for Convenience. Customer may cancel their subscription to the Services at any time and for any reason by contacting Triplebyte.
4. Effects of Termination. If this Agreement terminates or expires, then: (a) the rights granted by one party to the other will cease immediately (except as set forth in Section 12.3 and Section 15.12 (Survival)); (b) Customer will not have access to, or the ability to export, Customer Data after the effective date of termination or expiry of the Agreement and will be responsible for determining whether (and the extent to which) to use the functionality of the Services to delete Customer Data before such date; (c) Triplebyte will delete Customer Data as described in the Data Processing Amendment; (d) upon request each party will promptly use reasonable endeavors to return or destroy all Confidential Information (excluding Customer Data) of the other party; and (e) all Fees owed by Customer to Triplebyte are immediately due upon receipt of the final invoice.
Defense and Indemnity.
1. Triplebyte Indemnification Obligations. Subject to Section 13.4 (Conditions), Triplebyte will defend Customer and any of its Affiliates participating under this Agreement ("Customer Indemnified Parties"), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that Customer Indemnified Parties' use in accordance with this Agreement of Triplebyte's technology used to provide the Services (excluding any open source software) or of Triplebyte's Brand Features infringes the third party's Intellectual Property Rights.
2. Customer Indemnification Obligations. Subject to Section 13.4 (Conditions), Customer will defend Triplebyte and its Affiliates ("Triplebyte Indemnified Parties"), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: : (a) Customer Data or Customer Brand Features; (b) Customer's or an End User's use of the Services in violation of the Acceptable Use Policy.
3. Exclusions. This Section 13 will not apply to the extent the underlying allegation arises from: (a) modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party; or (b) combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party.
4. Conditions. Obligations under Sections 13.1 (Triplebyte Indemnification Obligations) and 13.2 (Customer's Indemnification Obligations) are conditioned on the following:
  1. The indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 13.1 or 13.2 (as applicable) will be reduced in proportion to the prejudice.
  2. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
5. Remedies.
  1. If Triplebyte reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Triplebyte may, at its sole option and expense: (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
  2. If Triplebyte does not believe the remedies in Section 13.5(a) are commercially reasonable, then Triplebyte may suspend or terminate Customer's use of the impacted Services.
6. Sole Rights and Obligations. Without affecting either party's termination rights, this Section 13 states the parties' only rights and obligations under this Agreement for any third party's Intellectual Property Rights allegations and Third-Party Legal Proceedings.
Limitation of Liability.
1. Limitations. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 14.2 (EXCEPTIONS TO LIMITATIONS),
  1. NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR: (i) THE OTHER PARTY'S LOST REVENUES; (ii) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE); OR (iii) EXEMPLARY OR PUNITIVE DAMAGES; AND
  2. EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.
2. Exceptions to Limitations. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY'S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) OBLIGATIONS UNDER SECTION 12 (DEFENSE AND INDEMNITY); (D) INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS; (E) PAYMENT OBLIGATIONS; OR (F) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Miscellaneous.
1. Notices. Triplebyte may provide any notice to Customer under this Agreement by: (a) sending an email to Notification Email Address or by (b) posting a notice in the Company Dashboard. Customer may provide notice to Triplebyte under this Agreement by sending an email to Triplebyte's legal department at legal@triplebyte.com. Notice will be treated as received when (x) the email is sent, whether or not the other party has received the email or (y) notice is posted in the Company Dashboard.
2. Excluded Candidates. A Candidate is not considered one and will not count against Usage Limits if Customer has proof that any of these conditions are met:
  1. Candidate has been submitted to Customer by any other party or website not related to the Services in the preceding 180 days.
  2. Candidate has applied to any position with Customer outside the Services in the preceding 180 days.
3. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations incurred under the Agreement before the assignment; and (c) the assigning party has notified the other party of the assignment. Any other attempt to transfer or assign is void.
4. Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
5. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
6. Subcontracting. Triplebyte may subcontract any of its obligations under the Agreement, but will remain liable to Customer for any subcontracted obligations.
7. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
8. Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
9. No Agency. The parties, and Reseller (if applicable) are independent contractors, and this Agreement does not create an agency, partnership or joint venture between or among Customer or Triplebyte or Reseller (regardless of the use of the term "partner", "certified" or other similar designation).
10. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
11. Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
12. Governing Law.
  1. For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county or state government entity, then the Agreement will be silent regarding governing law and venue.
  2. For U.S. Federal Government Entities. If Customer is a U.S. federal government entity then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW: (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
  3. For All Other Entities. If Customer is any entity not set forth in Section 15.11(a) or (b) then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
13. Amendments. Except to the extent this Agreement states otherwise, any amendment must be in writing and expressly state that it is amending this Agreement.
14. Survival. The following sections will survive expiration or termination of this Agreement: Section 4 (Payment), 7 (Confidential Information), 8.1 (Intellectual Property Rights), 12.2 (Effects of Termination), 13 (Defense and Indemnity), 14 (Limitation of Liability), 14 (Miscellaneous) and 15 (Definitions).
15. Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement are incorporated into this Agreement by such reference.
16. Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with Triplebyte to receive the Services, the physical agreement will override this online Agreement.
17. Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
Definitions.
1. "Acceptable Use Policy" means the acceptable use policy for the Services available at https://triplebyte.com/legal/acceptable_use, or such other URL as may be provided by Triplebyte.
2. "Account" means Customer's Triplebyte account credentials and correlating access to the Services under this Agreement.
3. "ADA" means the Americans with Disabilities Act of 1990, as may be amended from time to time, and any regulations issued thereunder.
4. "Additional Products" means products, services and applications that are not part of the Services but that may be accessible, via the Company Dashboard or otherwise, for use with the Services.
5. "Admin Account(s)" means the administrative account(s) provided to Customer by Triplebyte for the purpose of administering the Services.
6. "Administrators" mean the Customer-designated personnel who administer the Services to End Users on Customer's behalf.
7. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
8. "Agreement" means the combination of the Order Form and this Triplebyte Hire Agreement.
9. "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
10. “Call Request” means the action from the Customer of requesting an introduction or a call with a Candidate via the Services.
11. “Candidate” means someone that was found and introduced to Customer via the Services, excluding Excluded Candidates in accordance with section 15.2.
12. "Confidential Information" means information that one party (or Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is Customer's Confidential Information.
13. "Company Dashboard" means the online tool provided by Triplebyte to Customer in order to manage their access to the Services.
14. “Company Profile” means a publicly accessible webpage provided by the Services to showcase Customer’s company information and its open Roles.
15. "Customer Data" has the meaning given in the Data Processing Amendment.
16. "Data Processing Amendment" means Triplebyte's agreement describing Triplebyte's data protection and processing obligations with respect to Customer Data, as available at the following URL link: https://triplebyte.com/legal/dpa. The Data Processing Amendment and such URL link may be updated or modified by Triplebyte from time to time in accordance with Section 2.2.
17. "EEA" means the European Economic Area.
18. "EEOC" means the Equal Employment Opportunity Commission, a federal agency of the United States.
19. "Emergency Security Issue" means either: (a) Customer's or End Users' use of the Services in violation of the Acceptable Use Policy, in a way that disrupts: (i) the Services; (ii) other customers' use of the Services; or (iii) the Triplebyte network or servers used to provide the Services; or (b) to prevent unauthorized third party access to the Services or data within the Services.
20. “End Date” means the last day of an Access Period.
21. "End Users" means the individuals, including third parties, that Customer permits to use the Services.
22. "End User Account" means a Triplebyte-hosted account established by Customer through the Services for an End User.
23. "Export Control Laws" means all applicable export and reexport control laws and regulations, including trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State, but excluding the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce.
24. “FastTrack Candidate” means a Candidate that is going through a special Triplebyte program. Interacting with those special Candidates is subject to some restrictions according to Section 3.3.
25. "Fees" means the amounts invoiced to Customer by Triplebyte, or Reseller, if applicable, for the Services as described in this Agreement.
26. "GDPR" means, as applicable: (i) Regulation (EU) 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, and repealing Directive 95/46/EC; or (ii) the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.
27. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
28. “Hire” or “Candidate Hire“ means the act of Customer starting any type of work relationship or employment with a Candidate, either full-time, part-time or via any contracting or internship mean.
29. “Hiring Location” means a geographical area where Customer is hiring for a specific Role.
30. "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
31. "Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
32. "Legal Process" means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
33. "Liability" means any liability, whether under contract, tort, or otherwise, including for negligence.
34. "Notification Email Address" means the email address(es) designated by Customer in the Company Dashboard to receive certain notifications from Triplebyte. It is Customer's responsibility to keep the Notification Email Address(es) valid and current.
35. “Offer Letter” means any type of contract or agreement made between a Candidate and the Customer that triggers a Hire.
36. "Order Form" means the online order page or pages, or other ordering document acceptable to Triplebyte under this Agreement, that Customer completes in signing up for the Services or attached to this Agreement, which may include (i) the Services being ordered, which may include applicable billing and renewal terms; (ii) Fees; (iii) number of End User Accounts; (iv) list of features; and (v) the applicable form of payment.
37. “Pilot Period” means a special period that precedes a subscription to the Services. During that period, Customer has full access to the Services but can trigger a termination anytime, see Section 12.1. Usage Limits during a Pilot Period are combined with the following subscription.
38. "Purchase Order" means a Customer issued purchase order or PO.
39. “Role” means a position that Customer is looking to fill using the Service.
40. "Service Pages" mean the web pages displaying the Services to End Users.
41. "Services" means the applicable Triplebyte Hire functionality provided by Triplebyte and used by Customer under this Agreement. The Services are as described here: https://triplebyte.com/legal/services, or such other URL as Triplebyte may provide.
42. "Significant Deprecation" means to discontinue or to make backwards incompatible changes to the Services that result in Triplebyte no longer providing to its enterprise-customer base the ability to: (1) request introductions to software engineers; (2) storing and searching of candidate materials.
43. "SLA" means the Service Level Agreement located here: https://triplebyte.com/legal/sla, or such other URL as Triplebyte may provide.
44. “SuperWeek” means an optional paid feature provided by Triplebyte which let Triplebyte handle air travel and hotel accommodation for Candidates requiring it in accordance with Section 3.4.
45. "Suspend" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
46. "Taxes" means any duties, customs fees, or taxes (other than Triplebyte's income tax), including indirect taxes such as "goods and services tax" and "value-added tax," associated with the sale of the Services, including any related penalties or interest.
47. “Technical Score“ means any type of skill measurement provided by Triplebyte to Customer.
48. "Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the term of the last Order Form; (ii) the Agreement is terminated as set forth herein.
49. "Territory" means the territory as described here: https://triplebyte.com/legal/acceptable_use.
50. "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
51. "TSS" means the technical support services provided by Triplebyte to the Administrators under the TSS Guidelines.
52. "TSS Guidelines" means Triplebyte's technical support services guidelines then in effect for the Services.
53. "URL Terms" means the Acceptable Use Policy, the SLA, and the TSS Guidelines.